T – S (Children)
| Jurisdiction | England & Wales |
| Judge | King LJ,Floyd LJ |
| Judgment Date | 01 May 2019 |
| Neutral Citation | [2019] EWCA Civ 742 |
| Date | 01 May 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2019/0083 |
[2019] EWCA Civ 742
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT CARDIFF
HIS HONOUR JUDGE HARRIS-JENKINS
CF18C00599
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
( Lord Justice McFarlane)
Lord Justice Floyd
and
Lady Justice King
Case No: B4/2019/0083
Miss Ruth Henke QC AND Mr Matthew Rees (instructed by THE VALE OF GLAMORGAN COUNCIL) for the Appellant
Mr Iain Alba (instructed by PASSMORES SOLICITORS) for the Second Respondent
Mr James Tillyard QC AND Miss Catherine Heyworth (instructed by JNP LEGAL) for the the Guardian ad Litem
THE FIRST RESPONDENT MOTHER AND FOURTH RESPONDENT GRANDMOTHER
NOT REPRESENTED BUT APPEARING IN PERSON
Hearing date: 20 MARCH 2019
Approved Judgment
THE PRESIDENT OF THE FAMILY DIVISION:
On 20 November 2018, His Honour Judge Harris-Jenkins concluded a 14 day hearing in care proceedings concerning three children, all boys, one aged eight years, one aged four years and one only 21 months old. This appeal is focussed solely upon the welfare determination made with respect to the middle child, J, who is now aged five years. It is not therefore necessary to give more than a summary of the overall proceedings or of the outcome insofar as it related to the other two boys. The question raised by the appeal arises from a difference of opinion between the judge and the local authority around the question of whether J should be placed for adoption or placed in long-term foster care.
The statutory threshold criteria in Children Act 1989, s 31 [“CA 1989”] were conceded on the basis of evidence of poor and chaotic parenting over the course of four years. The children had remained in their mother's care throughout the court proceedings, but, on the judge's order, were removed from her home shortly before the conclusion of the case.
With respect to the eldest child, B, the judge made a full care order, thereby endorsing a care plan for long-term fostering with therapeutic support. The youngest child, K, was made the subject of a full care order together with an order under Adoption and Children Act 2002, s 21 [‘ACA 2002’] authorising the local authority to place him for adoption. There is no appeal concerning the orders made with respect to either of these two boys.
In relation to the middle child, J, there was substantial dispute on the expert and professional evidence concerning his care plan. As is well known, the statutory scheme, to which I will turn shortly, requires a local authority to apply for a Placement for Adoption order if it is satisfied that the child ‘ought to be placed for adoption’ [ACA 2002, s 22(1)(d)]. The local authority cannot be so “satisfied” unless an agency decision-maker [“ADM”] has so determined.
During the course of the hearing the judge heard oral evidence from the ADM who had concluded that J's welfare would best be served by a long-term fostering placement and had therefore not declared herself satisfied that J ought to be adopted. In reaching her decision the ADM had placed substantial weight upon the evidence of the local authority social worker which evaluated the attachment between J and his older brother B as being of importance.
The local authority, who sought to prioritise his relationship with the elder boy, B, who was his full sibling (in contrast to the younger child, K, who has a different father), favoured long-term fostering for J. In contrast, the evidence of an independent social worker who had been instructed to assess the children's attachments to their parents and siblings, together with the children's guardian, advised that J's welfare required adoption, if possible with his younger half-sibling, K.
The judge, in a lengthy judgment, having reviewed all of the relevant evidence, moved on to conduct his welfare evaluation with respect to J. In doing so the judge applied the welfare checklist in CA 1989, s 1(3) together with the adoption welfare check-list in ACA 2002, s 1(4).
The judge concluded that the assessment of attachment conducted by the social worker was both superficial and “fatally flawed”. The judge stated that he “much preferred” the evidence of the independent social worker and the children's guardian.
As the focus of this appeal is upon the consequences of the judge's welfare determination, rather than its internal merits, and as the conclusion of this court is that the issues concerning J's welfare now need to be re-determined by a different judge, it is neither necessary nor appropriate to descend to any greater detail.
Insofar as the ADM had based her assessment on the local authority social worker's own assessment, which the judge had found to be flawed, for that reason, and for others identified by the judge, he concluded that the local authority should be invited to reconsider the care plan for J.
At the conclusion of his judgment, and following a full evaluation within the structure of the adoption welfare checklist in ACA 2002, s 1(4), the judge expressed his conclusion with respect to J (at paragraph 146) as follows:
“This has been the most difficult and most contentious part of this hearing. I am satisfied that J cannot be cared for within his birth family. The decision is then whether he should be placed in long-term foster care or given the opportunity of being placed for adoption. The local authority has not satisfied me that the current amended care plan for long-term fostering best meets his welfare needs throughout his life. Standing back, looking at the whole of the evidence and considering the arguments that have been advanced on each side, I reach the conclusion, that his lifelong welfare interest is best met by his being placed for adoption if possible and if that is managed with K, then that is the best outcome of all. It should be noted, that this was mother's secondary position. I therefore invite the local authority, to reconsider their position in respect of J and to make a placement application. In the meantime, I will continue an interim care order with his remaining in the current foster placement until the case can be returned to me. I will indicate that if such a placement application is made then I will make the same and dispense with the parents' consent. If, the local authority do not take up that invitation, then the Guardian has already stated that she will consider the question of judicial review. That process is likely to cause further unwelcome delay for J's plan for permanency. Therefore, care will need to be taken.”
The judge therefore extended the interim care order with respect to J for a short time to enable the local authority to reconsider its care plan for J.
December 2018
The case returned to court before the judge on 14 December 2018. Unfortunately, there is no transcript of that hearing and, for reasons that I will explain, no further judgment was given. It is, however, possible to piece together what took place from the documents in the case and from accounts given to this court during the oral appeal hearing.
The key development, prior to the hearing, was that the ADM had prepared and filed a written statement at the conclusion of which she stated that she remained of the view that adoption was not in J's best interests. This statement is plainly important. The ADM summarised the information upon which her opinion was based as follows:
“In addition to the information I considered when making and then revisiting my decision in October, I have had the opportunity to consider the verbal judgment and the conclusions reached by the Court. I have also been able to consider the recordings of the foster carer and the social worker and the draft minutes of the Children Looked After Review which took place on 3.12.18, chaired by Mr X and attended by the foster carer, the social worker, the school and the health visitor. I have also had the opportunity to receive updated information regarding the position of Mr T (J's father).”
Pausing there, the ADM's reference to having “had the opportunity to consider the verbal judgment and the conclusions reached by the Court” is the only point in the statement at which its author refers to the judge's judgment save that in the concluding paragraph she states that “the decisions made have been carefully thought through having regard to all of the evidence before the Court and the Court's judgment in the case.”
This court was given clarification as to the reference to “verbal judgment” and was told that the ADM had been present in court when the judge had delivered his lengthy oral judgment. She had also had the benefit of notes of the judgment provided by one or more of the local authority team. Unfortunately, attempts to prepare a full transcript of the judgment prior to the ADM retaking her decision failed and the transcript that this court now has before it was not available to her at the time that she made her statement.
The body of the ADM's statement contains six paragraphs describing recent information in relation to J and K and, separately, J's father. The ADM then stated the basis of her conclusion as follows:
“I have considered J individually as I am required to do. I have revisited my balance sheet attached at Appendix 1 and remain of the view that adoption is not in J's best interests. The rationale for my thinking is set out in that document and has been further informed with the opportunity to consider the most up-to-date information available.”
Reference to a “balance sheet” is to a helpful four-page document setting out the pros and cons with respect to the choice as between long-term fostering or adoption for J. We were told that the “balance sheet” was an un-amended repetition of the “balance sheet” produced to the judge during...
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