W (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Henderson,Lord Justice Moylan |
| Judgment Date | 18 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1966 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 November 2019 |
| Docket Number | Case No: B4/2019/1548 |
[2019] EWCA Civ 1966
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
HER HONOR JUDGE BUSH
BM17C00319
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
Lord Justice Henderson
and
Lord Justice Moylan
Case No: B4/2019/1548
Matthew Brookes-Baker (instructed by Boardman, Hawkins & Osborne Llp) for the Appellant
Vanessa Meachin QC and James Legg (instructed by the Local Authority's Children's Trust Legal Department) for the 1 st Respondent Local Authority
Michael Bailey (instructed by Lillywhite Williams) for the 2 nd Respondent Mother
Hearing date: 10 th October 2019
Approved Judgment
This is an appeal brought by the appellant (“the great-aunt”) from care and placement orders made by HHJ Bush on 3 May 2019 at the conclusion of proceedings heard over four days concerning J, a little boy who has just turned two.
At the conclusion of the appeal hearing, we informed the parties that the appeal would be allowed. It follows that the care and placement orders will be set aside and the local authority's application, should they wish to pursue it, will be reheard. This judgment contains my reasons for concurring in that decision.
The sole ground of appeal is that the judge failed to give an adequately reasoned judgment. The ground was particularised to the extent that three specific alleged deficits were identified namely: (i) a failure sufficiently to analyse the factors set out in the welfare checklists contained in both s.1(3) Children Act 1989 and s1(4) Children and Adoption Act 2002; (ii) a failure to conduct an adequate holistic balancing exercise and to take into account such matters as the appellant's positive attributes; and (iii) a failure to carry out an adequate evaluation of the risk factors and the proportionality of adoption.
The question in the present case was, therefore, did the judge, in her short judgment of 8 pages, give a clear description of the factors considered and the reasoning that underpinned her conclusion prior to making a placement order.
Background
It is necessary in order properly to consider this appeal to set out the background to the case, together with its lengthy and tortuous progress towards trial as well as to examine in a little detail the assessments carried out on the great-aunt.
J's mother, the second respondent in this appeal (“the mother”), is a vulnerable young woman with considerable needs of her own, including learning disabilities. J was born towards the end of 2017 and shortly after, he and his mother went to live at a mother and baby foster placement. The mother soon realised that she was unable to care for her baby and on 10 November 2017, with the mother's consent, J was moved to a foster placement where he has remained ever since. After she left, the mother moved to and continues to live with the great-aunt with whom she had previously lived from time to time. The mother accepts that she is in no position to care for her child, and as long ago as January 2018 identified the great-aunt as a potential long-term carer for J.
In March 2018, the court approved the instruction of an independent social worker (“the ISW”) to undertake a parenting assessment for either the mother and the great-aunt jointly to care for J or, alternatively, for the great-aunt to be his sole carer. In fact, the only realistic placement has long been considered to be with the great-aunt alone.
On 24 May 2018, the ISW filed a substantial report. The assessment did not recommend placement with the great-aunt. That this was a finely balanced decision was undoubtedly the case. The great-aunt's many and varied attributes practically, intellectually and emotionally are discussed within the assessment. In her final analysis, the ISW said:
“[The great-aunt] is, in many ways, a remarkable woman with a host of admirable talents and commendable qualities. She has much to offer J as a result, but I am concerned about the impact of the vulnerabilities identified above upon her ability to provide him with the consistently safe, predictable and focussed care that he needs.
Weighing up how much significance to attach to the benefits and risks has necessitated a delicate balancing exercise. [The great-aunt] has significant potential as an alternative carer, which it would clearly be in J's interests to realise if this could be safely achieved.
I have carefully considered whether support could be provided to ameliorate and manage the risks identified and enable J to be cared for within this loving and positive family environment.”
The ISW set out in detail in the form of bullet points the many and varied strengths of the great-aunt which include:
i) Her commitment to the assessment process and that she is “a kind, devoted life-long carer of others” whose history demonstrates a capacity to cope with the challenges that this can present;
ii) That the commitment she would show J would be enduring and her resilience would enable her to withstand any difficulty she would face in doing so;
iii) That when her daughter had been sexually abused she had reported the allegations to the police, worked with them and supported her daughter's recovery;
iv) That she is intelligent, articulate, capable, resourceful, organised, energetic, enthusiastic, calm, tolerant and patient;
v) Importantly, it may be thought, the ISW was of the view that the great-aunt's “faith in the good of others and their potential,” combined with her gentle, companionate and emotionally attuned style suggests that she should be able to nurture J's emotional wellbeing and their relationship in the longer term if it does not come into conflict with her sometimes limited recognition of risk;
vi) That she remains committed to supporting the mother to become the best parent she can and promoting J's experience of growing up within “a whole family setting while ensuring his safety” and;
vii) That the aunt is skilled at managing “the varying and sometimes conflicting needs of her mother, sister and niece within the household; smoothing, soothing and distracting while promoting positive and shared links between the three. She has an inner-circle of close friends that are willing and able to assist. These skills will stand her in good stead when dealing with any similar issues in respect of J.”
The countering concerns of risk centred around:
i) The great-aunt's many and various commitments both caring commitments, and her work-load outside the home. The ISW was concerned that the business of the household brought with it a degree of “chaos and unpredictability” that might make it more difficult for the great-aunt to retain her focus on providing for J's needs;
ii) The ISW's belief that the great-aunt's compassionate belief in others and their
“untapped potential” appeared to cloud her judgement and hamper her ability to recognise risk. This, she believed, could leave J at risk.
iii) A further issue was that the great-aunt had failed to disclose to the assessor the abuse of her daughter as a child and her daughter's subsequent problematic relationships which had resulted in her grandchildren being the subject of child protection plans. This, the ISW felt, raised concerns as to her ability to be open and honest with professionals in order to safeguard J. This conclusion is fleshed out in the main report where the ISW said as follows:
“[The great-aunt] has recognised and acted to try to protect others from risk in the past. She has done so in respect of [the mother] contacting the doctor when she was concerned about her self-harming, taking her in as a 16-year-old; and in respect of her sister when she was in a violent relationship. She acted sensitively and appropriately in respect of her daughter's abuse and is a generally caring and protective individual. She has considerable and relevant professional experience of safeguarding.
However, it is my impression that [the great-aunt] has difficulty accepting that people she cares about or for whom she feels sympathy, can present risk; by omission or commission, with intent or unintentionally. [The great-aunt] is a kind, empathetic person who I think struggles to separate her feelings of compassion for the perceived victim from her role as the protector and person that is to prioritise J's needs. She struggles to make the distinction between compassion and risk that would help to prevent compassion from clouding her recognition of risk.”
The ISW felt that, although there had been some improved recognition and acceptance with regard to risk by the great-aunt, she would need to demonstrate that her understanding and recognition of risk permeated all aspects of her thinking and any decision-making that could have an impact on J before it could be considered that “meaningful progress” has been made. The great-aunt would need to show, said the ISW, that she is willing to be open, share information and accept and act on the concerns of professionals for there to be confidence that any gaps in her risk recognition could be bridged by support. The ultimate conclusion was:
“On balance, therefore, I do not recommend that the great-aunt is approved as a family and friends foster carer for J. Too many uncertainties and niggles remain for me to feel confident that the great-aunt will be able to consistently focus on meeting J's needs as his primary carer throughout his childhood.”
The assessment having been negative, the local authority filed an application in June 2018 seeking an urgent case management hearing; they now sought permanency for J through adoption. The great-aunt, who was and has remained unrepresented throughout the proceedings at first instance, responded by making an application seeking party status, which was adjourned to the next issues resolution hearing.
On 5 September 2018, the Guardian...
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