Re T (Care Order)
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 2009 |
| Neutral Citation | [2009] EWCA Civ 121 |
| Docket Number | LS07C05095 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 March 2009 |
[2009] EWCA Civ 121
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Ibbotson
Before: The President
Lady Justice Arden
Lord Justice
Jackson
LS07C05095
Philip Booth (Instructed by Legal, Licensing and Registration, Leeds City Council) for the Appellant
Malcolm Chisholm (Instructed by CAFCASS Legal) for the Respondent
Hearing dates: 5 November 2008
Sir Mark Potter P:
Introduction and Background
This is an appeal by a local authority against a care order made on 11 July 2008 by His Honour Judge Ibbotson following the final hearing of care proceedings brought by the local authority (“the Council”). The issue upon this appeal is whether, instead of the care order which he made, the judge should have made a supervision order, as advocated by all the parties before him. The case concerns a male child B born on 27 October 2006 and now aged 2. His mother and father, aged 33 and 35 respectively, were married in 1998 and remain together. B has 2 siblings, 2 older than himself, namely J, a girl who is now 16 but was 15 at the time of this appeal, and M, a boy now aged 8. Prior to January 2007, they all lived together as a family, together with B's male cousin, now aged 13, who is the son of the mother's sister, but had lived with the family since 2003 following the breakdown of his relationship with his parents.
The proceedings began on 27 January 2007 when the Council sought an interim care order in respect of B and an interim supervision order in respect of the other three children following an injury sustained by B.
On 20 January 2007, B had been brought to the accident and emergency department of the local hospital by his parents, having sustained a serious head injury consisting of a bi-lateral skull fracture with soft tissue swelling and a small subdural haemorrhage. Dr R, the consultant paediatrician in charge of B's care, concluded that it was a non-accidental injury and, upon that basis, interim care orders were made on 5 February 2007.
On 5 July 2007, following a fact finding hearing, His Honour Judge Kamil rejected the parents' account that B's injuries had resulted from an accidental fall from a Moses basket, and found that the injuries were non-accidental in origin. In that respect he relied on the evidence of Dr R and the second opinion of Dr M. He found that the injuries were caused either by the mother or father, in whose care B was at the time of his injury and that the non-perpetrator had been guilty of failure to protect.
The care proceedings in respect of B's siblings ended on 7 December 2007 when, by consent, Judge Ibbotson made no order in respect of them.
On the instructions of the Council, Broomhill Family Centre, an NCH project, carried out a parenting and risk assessment in relation to the mother and father which was completed on 31 October 2007. This assessment concluded that, given B's age and vulnerability, he could not safely be rehabilitated to the parents' care. However, it opined that consideration should be given to B remaining within the extended family network in order to enable ongoing sibling contact. It recommended that, in the light of issues of domestic violence, alcohol and anger management, the only circumstances under which consideration should be given to returning B to his parents care were if (a) the father accessed appropriate services to address issues to do with alcohol (b) both parents accessed services to address anger management issues (c) the mother accessed services to address her ability to protect herself and the children from possible future domestic violence incidents and (d) both parents demonstrated an ability to continue to engage with a range of professionals to meet the children's needs.
The assessment noted that, despite the parents stating that they would engage with professionals if it was deemed necessary, they did not accept that they had alcohol or anger issues which needed addressing. Since members of the extended family stated that they were not aware that the father misused alcohol historically, this had limited the ability of the extended family to offer appropriate support and protection in the past and, unless the issue of alcohol were addressed, would also limit the role of the extended family in the future.
On 7 November 2007 the Council produced a care plan which sought to place B with his paternal aunt and her partner as potential long term family network carers for B, the alternative being stated to be a placement with local authority foster carers pending identification of an alternative long term placement. This apparently came as a shock to the parents who said they had been receiving favourable signals from both Broomhill and the local authority social worker and were expecting that B would be permitted to return home.
B's guardian in the proceedings reported on 27 November, only 10 days before the date then set for the final hearing. The guardian stated that she was unable to support the care plan for a care order because it was in effect “inchoate”, that the recommendation of no rehabilitation was “overly draconian,” and she considered that on balance the risk would be managed if B were returned to his home subject to a package of support and intervention. B's rehabilitation should be under a care order, and subject to a Placement with Parents Agreement outlining stipulations on the part of the parents who were now actively enlisting the help of support agencies. The guardian invited the Council to reconsider its plan saying that, should the Council maintain its opposition to placement at home, she would recommend a supervision order with strict conditions attached to the effect that (a) the father and mother would continue to seek the assistance of support agencies with which each had recently engaged and (b) they would agree to manage their alcohol use and behaviour. At the final hearing in December, the Council amended their original care plan and accepted Broomhill's recommendation for B's permanent placement outside the family in the absence of an approved family Network Carer.
However, following the evidence of, among others, the parents and those responsible for the Broomhill assessment, in the course of the evidence of the guardian the parties sought time for discussion and asked the Judge to adjourn until 7 January for further consideration and directions. Being satisfied that such delay was likely to be constructive, the Judge agreed. At a resumed hearing on 7 January 2008, and at the request of the parties, the Judge made an order (a) to allow a parenting assessment of the paternal aunt who had previously provided foster care for B and (b) for the instruction of an independent social worker, Ms JB, to carry out an assessment of the mother and father who had by then made and maintained progress in seeking support and co-operating with the social services to address the matters set out at paragraph 6 (a)-(d) above. They were actively attending agencies relating to domestic violence, but the work was still at an early stage.
Progress was such that the report of Ms JB dated 11 March 2008 concluded that B could be returned to his parents' care either under a care order or a supervision order with strict conditions which rendered manageable the risk posed to B should the father, who stated that he had given up drink, begin to drink again in the future. Ms JB addressed at length the issues about alcohol misuse, domestic violence, the parents' continued claiming that the injury was accidental, the quality of care of each of their children, the potential trigger factors to violence and the parents' attendance at support groups. In her view the parents had shown commitment and motivation in addressing issues of concern. In relation to the risks to B if returned to his parents, she adopted a balance sheet approach under which she identified many positives and only one negative, namely the failure of the parents to explain the injury and accept the findings of fact. She felt confident that the parents could work with a formal agreement. Among the positives were that the father had faced his problems with alcohol, recognised that his level of alcohol consumption and his aggression were linked, had attended Leeds Alcohol and Drugs Service to demonstrate that he was no longer drinking excessively and expressed himself willing to undergo random blood tests in order to continue to prove this. He had also attended, and was continuing to attend the S.T.O.P. (Start Treating Others Positively) programme in which he was recognised to be a genuine and helpful participant. The mother had attended Leeds Womens Aid since November 2007 and had made such good progress in recognising her need and ability to protect herself and children should it prove necessary that the course leader felt she no longer needed to continue to attend. Mrs JB considered that B could “be safely reunited with his parents and that his placement with his parents can be managed with a package of support and monitoring”, and stated that he could be returned home to the care of his parents under a phased rehabilitation plan.
Under a further care plan filed on 16 April 2008, the Council no longer pursued its application for a care order but sought the return of T to the care of his parents under a supervision order containing safeguards, provision for a phased return home programme for B, and monitoring thereafter.
On 2 May 2008 the report of the guardian supported this recommendation and in statements dated 30...
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