Z v Kent CC (revocation of placement order: failure to assess mother’s capacity and grandparents)
| Jurisdiction | England & Wales |
| Judge | HER HONOUR JUDGE LAZARUS |
| Judgment Date | 18 October 2018 |
| Court | Family Division |
Care proceedings – Placement order – Duty to assess potential family carers – Family members not aware of child’s existence – Relying on parental statements about potential carers where capacity an issue – Breaches of human rights – Welfare decision.
The mother had serious mental health difficulties, including alcoholism. Her elder two children, aged seven and eight, were living with their paternal grandmother under special guardianship orders made in private family proceedings in 2012; they spent alternate weekends with their paternal aunt and her partner and had contact with the mother. The maternal grandmother did not have very much contact with the elder two children, although she did not live far away.
When, in 2017, the mother presented as pregnant for a third time, the midwifery team made a referral to the local authority. Care proceedings began. Throughout the proceedings the mother went in and out of psychiatric units; she never attended court; and her engagement with her solicitor was limited. The mother’s diagnosis of emotionally unstable personality disorder and her alcohol dependence were well known and directions were made that she should be subject to capacity, cognitive and psychiatric assessment. However, these did not result in any assessments or other medical information being provided. Care and placement orders were nonetheless made, on the basis that the child would be placed with and eventually adopted by the paternal aunt of the child’s elder siblings (the child’s step-aunt) and her partner. This placement was purportedly consented to by the mother, following brief telephone discussions.
At the mother’s request, the child’s maternal grandmother was not informed of the child’s birth, or of the care proceedings. The maternal grandmother found out about the child about four days after the orders were made (about three weeks after the placement with the step-aunt and her partner); she applied to revoke the placement orders and to be granted special guardianship orders. The youngest child began making fortnightly visits to the maternal grandmother and her husband, which the mother sometimes attended as well. The other parties all acknowledged that, had the maternal grandmother and her husband put themselves forward during the care proceedings and been assessed, it was highly likely that they would have been assessed positively. Nonetheless, the local authority and the guardian supported the placement with the step-aunt and her partner, who themselves applied for special guardianship orders.
In the revocation proceedings, the mother was assessed as having a severe personality disorder with psychotic symptoms and as lacking capacity to litigate. She was therefore represented in the proceedings through her litigation friend, the Official Solicitor. The independent social worker assessed the maternal grandmother and her husband positively but did not recommend that the child moved to their care, because of his overall needs and characteristics, including the emotional impact on him of another change in carers. The child was now 15 months old; he had bonded and settled well with his step aunt and her partner, and saw his half-siblings frequently. He showed unusually marked anxiety and stress on separation from his step aunt and her partner and difficulty settling on visits with the maternal grandmother and her husband, albeit that he did usually settle after a time, and he showed relief and relaxation on returning to the step aunt and her partner.
Held – (1) This situation represented a wide-ranging composite set of failings on the part of the local authority, its child protection and adult mental health teams, the legal representatives of all the parties, the guardian and the court. The temptations of a precipitate approach, naturally abetted by the lure of completing a case within the required 26-week time-limit and by the existence of ‘a solution’ for the child, tempting professionals and the court not to address harder, wider or longer questions which might cause delay, had led everyone to push ahead to extremely serious final orders despite serious procedural irregularities. The mother should have had her capacity determined by the court. The Official Solicitor would then, in all likelihood, have been appointed to act on her behalf. A different course would have then been taken in relation to case management. The maternal grandmother should have been informed, if possible prior to proceedings starting, and should have been assessed. Had this happened it was unlikely to the point of impossibility that the same final orders would have been made; at the very least the position of the maternal grandmother and her husband would have been included in any consideration of the child’s case. It was almost impossible to imagine that special guardianship orders would not have been granted to the maternal grandmother and her husband if they had been the sole alternative option proposed, and the child would then have been placed with them, either from birth, if assessed early enough, or from foster care, rather than with the step aunt and her partner. At the very least the maternal grandmother and her husband would have had an opportunity to have their role in the child’s life considered in the course of the care proceedings. On any analysis, a placement order with all its implications for birth family members’ rights and limited scope for revocation, should not have been made on the basis of this mother’s purported consent (see [8]–[11], [48](XI), (XIII), below).
(2) It was clear that rights under European Convention on Human Rights arts 6 (access to justice) and 8 (respect for family life) had been engaged in the care proceedings. It was also clear that statutory provisions, guidance and case law designed to protect, respect, address and determine any interference with those rights in a proportionate way, had not been adequately applied or followed. Those issues might be for another forum (see [12], below).
(3) The maternal grandmother and her husband were understandably extremely unhappy and resentful; immense stress, anguish, resentment, tension and distrust had been generated between all the adults. Notwithstanding this unfair situation, which should never have arisen, the child should remain with the step aunt and her husband, under special guardianship orders in conjunction with a family assistance order and a child arrangements order, in order to support the child’s contact with the mother, maternal grandparents and wider maternal family. This decision was not a criticism of the maternal grandmother and her husband, but a recognition that, on balance, the child’s current carers were better placed to meet his overall needs. It was essential that mediation and family therapy was provided. Although this had not initially been included in the care plan, at the court’s request, the local authority had now modified its position and would source appropriate mediation and family therapy and, if necessary, fund such services. This was a vital commitment (see [13], [18]–[21], below).
(4) Masterman-Lister v Brutton and Co (nos 1 and 2) [2003] 1 WLR 1511, stated that medical evidence was ‘almost certainly’ required for the purposes of establishing lack of capacity but there was no clear and authoritative decision providing guidance as to what to do if there was no such medical evidence, because of the person’s non-engagement, refusal to attend assessments or a failure to provide information by the relevant medical sources. Para 44 of the recently updated 2018 version of the Family Justice Council guidance ‘Parents who Lack Capacity to Conduct Public Law Proceedings’ stated that: ‘A parent may decline professional assessment. In those circumstances, it will be for the court to determine the issue on the best evidence it has available.’ This might enable courts to meet the absolute requirement that capacity issues must be fully addressed and determined, by reaching appropriate pragmatic evidence-based decisions, while ensuring that both the overriding objective and the protected party’s rights were kept fully in mind. Such a determination could be based on a careful review of the other relevant material that might be available, such as a report from a clinician who knew the party’s condition well enough to report without interviewing the party, other medical records, accounts of family members, accounts of the social worker or other agency workers who might be supporting the parent, and occasionally direct evidence from a parent. Any finding made without expert assessment evidence which led to a declaration of protected party status due to lack of litigation capacity could always be reviewed if later expert evidence suggested that the finding was incorrect (in a similar way to what happened when a party regained capacity); the question of assessment was always to be regularly revisited with the protected party by their litigation friend, their solicitor and the court (see [40](k), (o), (p), (r)–(u), below).
(5) The presumption of capacity did not replace or obviate the need for the court to determine the issue of litigation capacity on evidence as a matter of fact, or entitle the parties or the court to ignore a capacity problem, particularly where, as in this case, there were worrying recent accounts of the party being significantly unwell. It was simply a rebuttable assumption and a starting point. It was clearly impermissible or inappropriate, and would likely lead to a failure to apply the required procedural approach and lead to breaches of art 6 and 8 ECHR rights, for the local authority and the court to: fail to grasp the capacity nettle fully and early; ignore information or evidence that a party might lack capacity; purport to ‘adopt’ the presumption of capacity in circumstances where capacity had been questioned; make directions addressing the capacity issue, but discharge them or fail to comply...
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