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England and Wales Family Court Decisions (other Judges)

You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> X (Discharge of care order (1)), Re [2014] EWFC B217 (03 December 2014)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B217.html
Cite as: [2014] EWFC B217

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: MK14C01562


351 Silbury Boulevard
Milton Keynes
3rd December 2014

B e f o r e :




Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370


MR BARNES appeared on behalf of the Applicant
MS LITTLE appeared on behalf of the Respondent
MR BROWNE appeared on behalf of the Guardian



Crown Copyright ©


  1. Today the court is concerned with a little boy X who is now 14 years of age. His mother is D and she seeks discharge of care order made in favour of Bucks County Council. Her proposal is that there should be a phased return of X to her home over the course of the next seven months. She further seeks discharge of the Section 34(4) contact order made on 12 December 2012 and invites the court to make a defined contact order if the care order is not discharged.
  2. S is the father of X. He has played no part in the life of X and does not have PR. He has played no part in these proceedings.
  3. X appears through his guardian Sylvia Baker. Mrs Baker replaces Ellick Taylor, his guardian in the applications heard by this court in 2011 and 2012.
  4. The children's guardian does not support the discharge of the care order; nonetheless, she asks the court to adjourn the mother's application. It is submitted on the guardian's behalf that the Local Authority has so failed in its duty as corporate parent to implement the final care plan approved by the court that it should be held to account and its future planning overseen by the court. The guardian urges the court to require the Local Authority to produce an updated plan that is coherent, choate and capable of implementation. The guardian supports the discharge of the Section 34(4) contact order. She does not support the making of a defined contact order in substitution, but invites the court to direct the Local Authority to confirm its commitment to contact at the level of six times a year in its revised plan.
  5. The Local Authority opposes the discharge of the care order and challenges the suggestion that the court has jurisdiction to adjourn these proceedings for the sole purpose of monitoring the actions of the Local Authority as proposed by the guardian. The Local Authority no longer opposes discharge of the Section 34(4) contact order and instead invites the court to leave contact in their discretion, with a proposal that X should have contact six times a year, with four of those contacts being with his mother and siblings, plus one contact with Mother alone and one contact with the siblings alone.
  6. The parties have all been ably represented. I understand that those who represent Mother only had funding for this final hearing confirmed last week. I am bound to say that I have been greatly assisted by counsel for Mother, whose penetrating cross-examination enabled the court to hear the full detail of the Local Authority's difficulties in a way that might not otherwise have been achieved.
  7. I have heard evidence from the mother; the independent reviewing officer, Mr Graham Moore; the senior social worker, Mrs Gill Allen, and the guardian, Sylvia Baker. I have read the court bundle, which includes my earlier judgments, and this judgment should be read in conjunction with those that I delivered in June and December of 2012.
  8. The law.
  9. It is D's application and it is therefore for D to satisfy the court that she has achieved material change and that X's welfare requires discharge of the care order. D says that when considering X's welfare, the court can and must look at the way the Local Authority implemented its care plan and the consequent effects on him, in determining whether his welfare requires discharge or continuation of the order.

  10. The history.
  11. D and her family have been known to Social Services for in excess of 20 years. Six of her eight children have been removed from her care: five in 1999 and X in June 2012.

  12. The order that D seeks is to discharge is the care order made in 2001. Rather unusually, X remained at home under a care order for 11 years. In 2010, D made her first application to discharge that care order. The Local Authority cross-applied for care orders in respect of the two younger siblings and to remove X.
  13. The Local Authority's applications to remove X and for interim care orders for the removal of his two younger siblings came before me in October 2011. I refused the Local Authority's application for removal of all three children at that stage but noted the difficult and challenging nature of mother's interaction with the professionals. I expressed hope that a more constructive dialogue might develop.
  14. In June 2012, I dismissed the Local Authority's application for final care orders for the girls, but with heavy heart granted the application to remove X. X is a child with diagnosed autism. His diagnosis was achieved through the determined pursuit of D. In June 2012, I concluded after extensive assessment by Dr Berelowitz, psychiatrist, and Dr Gillett psychologist, that D could not meet X's needs without extensive support and input from external agencies. I concluded that sadly she had shown herself consistently unable or unwilling to work constructively with the Authority and other agencies. I was reluctant to grant the Section 34(4) contact order as at June 2012 without giving D a further chance to demonstrate how she could work with the Local Authority around contact, and ordered an independent assessment by a named independent social worker, Jane Andrews, whose appointment was agreed by D.
  15. In the event, the assessment of Jane Andrews was negative and indicated that D was still unable to work cooperatively with the Local Authority around contact and that she lacked the capacity to engage and work with them. Thus it was that, in December 2012, I granted the Section 34(4) contact order and invited the parties to include a recital to the order to record the Local Authority's stated commitment to keep the issue of contact between X and D under review.
  16. Events post order for the removal of X.
  17. In the period since the court made its orders of June and December 2012, D's two youngest daughters have remained in her care. There has been no statutory involvement from Social Services; it is therefore reasonable for the court to assume that the Local Authority has no concerns about the care provided to them. D, very sadly, has been involved on the periphery of proceedings relating to a number of her grandchildren, at least two of whom have been permanently removed. Her losses have continued, therefore, to be many and great.
  18. X has been in his current placement since July 2012. He had no preparation for the move because no mechanism could be agreed between D and the Local Authority as to how the facts of the proceedings could be relayed to him.
  19. D issued her application for discharge of the care order and the Section 34 contact order in August 2014, some 26 months after the order for the removal of X. The matter came before His Honour Judge Serota for directions on 4 September. The case was listed for final hearing with the direction that any Part 25 application should be issued by 28 October. No Part 25 application has been issued.
  20. Having just returned to sit at Milton Keynes, I called for the file to review the directions and the matter came before me at a hearing of the court's own motion on 4 November. I was concerned at the apparent lack of progress in the child's plan since my orders were made in June and December 2012 and gave supplemental directions for the Local Authority to provide information of the support that would be provided to Mother if the child were to be returned home. I further directed a statement from the independent reviewing officer.
  21. During the course of the last two days of evidence, it has become clear that the Local Authority has not implemented key elements of it's final care plan underpinning the application for the removal of X; as to his permanent placement, work with CAMHS or life story work.
  22. Permanence.
  23. The Local Authority has failed to secure a permanent placement for X. At the time the matter was before the court some two and a half years ago in June 2012, I was advised that a suitable long-term foster placement had been identified for the three siblings. I was further reassured that, so far as X is concerned, the proposed carers would seek the necessary training and education to support X. X was placed with the couple identified as his proposed long term carers. He has remained with them since. I am told he is thriving, but it is a placement that has not been without its challenges, and, indeed, I understand that in the early months of the placement there were reports of continuing self-harm and threats of self-harm.

  24. By the time the matter came before me in December 2012, I was advised that things had settled. However whilst giving evidence the social worker told the court and the parties that the foster carers were reconsidering whether they would in fact continue to care for X in the longer term. This was news to the court and to D. On enquiry, the court was advised that the carers had hoped to offer themselves as carers for three children and were concerned that they may find themselves able to care for only one because of the nature of X's needs.
  25. In my judgment of December 2012 [H63] I expressed the hope that the Local Authority would consider allocating additional resources to support the placement of X with the foster carers, if that were the only obstacle to permanence.
  26. In the last two days, I have been told, and indeed can see from the LAC review minutes, that the placement has still not been confirmed as permanent. I am told that work has been done with X to help him understand that he may have to move on. However, and perhaps even more confusingly, I am also told that the carers continued to keep their position on permanence under review.
  27. In evidence on Monday, Ms Allen said she had just received confirmation from the team charged with family finding for X, that the carers had now made a firm decision to offer a permanent home to X. I was further told that the Local Authority have made a firm commitment to put resources in place to enable X to remain with his carers permanently as the sole child in their care.
  28. This change in the Local Authority's case caused some consternation in the mother's legal team. There had been insufficient time to share this change with the mother or with the children's guardian before coming into court. I quite appreciate how difficult it is to share updating information in the scramble to get it into court, particularly where you have a judge who requires everyone to be in promptly, but it is most unfortunate that the team charged with family finding left matters so late as to create this difficulty. The mother and the children's guardian are now perhaps understandably cynical about this new information. For the mother, it appears too little too late, and for the children's guardian it raises questions about the carer's motivation.
  29. Ms Little for the Local Authority reassures the court and the parties that the issue is not one of finance for the carers but rather their genuine desire to offer a home for three children rather than limiting themselves to one. The question of their motivation and the basis on which they are now able to offer themselves as permanent carer will no doubt be under review in the days following this hearing.
  30. It is nonetheless clear that, since at least December 2012, the Local Authority have been aware that the current carers were at best equivocal about X remaining with them on a long-term basis. What is not clear is what efforts the Local Authority's Access to Resources Team made to find a permanent placement for X I am told that two referrals were made to the team, the first being the principal referral and the second an updating referral. Moreover I am told that Ms Allen spoke to the team from time to time and was satisfied that they were alive to his need for placement and knew of X's placement needs. The searches appear to have been limited to two geographical areas in line with the wishes of X and the location of his current placement and school
  31. I am advised that no financial restraints were imposed on family finding. I am further told that it is, and was, reasonable for the Social Work Team to rely on the Access to Resources Team to progress the search for a long term placement on the basis of the two referrals and that no further prompting or enquiry from the Social Work Team was required.
  32. What is lacking in the evidence, however, is any sense of a rigorous, determined and purposeful search over the course of the last two and a half years. The LAC reviews, whilst being required to consider the plan for permanence, appear to play lip service to the need to achieve this. There is no record of reasoned debate and discussion about the child's need for permanence or how the plan for permanence might be reviewed and achieved. It is fortuitous that X has been able to remain where he is to date. It may be that he will remain there until he achieves independence. Nonetheless it is regrettable that the Local Authority failed to rigorously pursue suitable alternative long term placements for X or demonstrate a determination and clarity of thought in the allocation of their resources. The LAC review minutes do not demonstrate clear and strategic planning in the search for a family even during the period when the Local Authority knew of the equivocation of the current carers.
  33. It is generally acknowledged that the earlier a child achieves permanence the better. It is all the more important for a child like X, whose needs are necessarily heightened by his family history and his autism. I am advised by the IRO that there are significant resource issues for family finding, and finding long-term foster homes for boys is more difficult than for girls. I note the evidence of the independent reviewing officer, Mr Moore, who indicated that 75% of the children he was responsible for with a plan for long-term fostering were still waiting for a permanent placement more than two years after final order.
  34. Referral to CAMHS.
  35. One of the principal issues in the June 2012 hearing was the Local Authority's concern to ensure that X was enabled to engage with the CAMHS service. It is therefore extraordinary that X's therapeutic support did not begin until November 2014. He had his first session with the therapeutic service on 13 November. He is due to have six more sessions and the service will be reviewed in December. I am told by the Local Authority that the sessions are likely to continue through until April and that X is enjoying them. I understand that Mrs Allen has worked very hard to obtain the funding from the relevant agencies for X and to persuade the budget holders to divert resources to this end, but when looking at the time scales, the incremental delay in the Local Authority obtaining the services that X required, has led to him being without out of the services they asserted were essential for some two years.

  36. I understand X's current health authority reviewed X's case and decided that they could not provide a service in 2013. Some might ask why this Local Authority did not think that that was an appropriate point to seek out a private resource. The commissioning manager for Bucks CAMHS confirmed funding was not an issue on 12 December 2013, and yet no services made available until November 2014.
  37. Life story work.
  38. X is an autistic child with a high level of need for security, stability and predictability. When he was moved by order of this court in June 2012, there was extensive evidence as to how the move would be managed. There was no agreement between the mother and the Local Authority as to what could be shared with X and as X was at home, and mother declined to allow the social worker to see X on his own; no mechanism or plan could be agreed. It is clear that he found the move traumatic and I note he described his move into foster care to the Guardian 'like being kidnapped'.

  39. The school and the social worker, working directly with X, have indicated to the guardian that X continues to be traumatised as a consequence of the move. It is clearly regrettable that the direct work of CAMHS and life story work was not undertaken with X to assist in ameliorating his anxieties in timely fashion. I am advised that the Local Authority has done some work with X and that attempts have been made to help him understand why he is in care, but the scaffolding that was intended to be set up to support him in the period immediately after his move and beyond has simply not been established.
  40. Contact.
  41. The court made the Section 34(4) contact order under consideration on 12 December 2012. When this court made its order, I made clear that it was important for the Local Authority to work to promote contact in accordance with its statutory duty. What appears to have happened is that contact has not been actively promoted and, between February 2013 and April 2014, no contact took place between X and his mother.

  42. The Local Authority were very anxious that, absent a working agreement with Mother about how contact would be managed, the contact could undermine X. Furthermore, because Mother was concerned that her two young daughters would require her presence to reassure them, the Local Authority did not feel able to facilitate sibling contact.
  43. The children's guardian, who looks at this case with a fresh pair of eyes, questions why Mother was not included in contact at an earlier stage and suggests that Mother's desire to be there to support her girls was understandable in circumstances where X had been removed into care without preparation. It is apparent that X has been asking to see his mother and his siblings for a significant period. A gap of 14 months in those circumstances is unacceptable.
  44. I understand that Miss Allen was alive to the significance of contact and worked hard to see whether a meaningful dialogue could be established with D. The desire to establish that dialogue appears, however, to have got in the way of setting up the practical contact arrangements until the early part of this year. Contact did not take place until April 2014, resulting in a period of 14 months without contact for X. The April 2014 contact was emotional but considered to have been well managed by Mother. Contact for Mother and siblings then took place on 4 August and 27 October. It has been noted to be equally positive; with Mother able to demonstrate that she can manage X's needs in the limited context of contact whilst also addressing the anxieties of the girls whose relationship with X had been disrupted.
  45. Mother says that she has been marginalised by the Local Authority. She has not been invited to any LAC review. There have been only limited attempts to meet with her. She has received no information about X's school. She has not been provided with an update of his progress in placement.

  46. Mother said the Local Authority have been high-handed, critical and antagonistic, that the Local Authority have not given thought to X returning to her care or to provide the services or consider what services might be required to enable such a return to be effective.
  47. At this point, it seems to me appropriate to consider the role of the independent reviewing officer in X's case. Mr Moore has been the independent reviewing officer for X since July 2012. Graham Moore provided a statement and gave evidence to this court. He is an experienced IRO, having been engaged in that role for the last five years. Before that worked as a Cafcass guardian. The IRO accepted that his role meant that he had responsibility for
  48. i) providing independent oversight of the Local Authority's care plan

    ii) ensuring that the child's interests were protected through the care planning process;

    iii) establishing the child's wishes and feelings.

    The IRO accepted the statutory requirements of the LAC review process and that as IRO he was responsible for setting a remedial timescales where necessary.

  49. Whilst parents do not always attend LAC reviews, a system is generally devised to enable meaningful sharing of information following LAC reviews. Mr Moore told me that he had endeavoured to meet D in order to achieve this, but they had not been able to meet. Regrettably, no other practical system was implemented to enable the sharing of the outcome of the LAC reviews.
  50. The IRO accepted that the statutory guidance is clear; that where a matter is outside the control of a Local Authority, but is impacting on the ability of that Authority to meet the child's needs the IRO should escalate the issue to ensure the child's welfare needs are met. In this case the Access to Resources Team (family finding) failed to find a permanent placement for X in circumstances where his carers were clearly equivocal about whether they could offer him permanence. Yet the IRO did not escalate the issue. The IRO's monitoring of the Local Authority search for a permanent placement principally rested on information provided by the social worker. The Access to resources team did not provide regular updates on the outcome of its searches.
  51. The IRO confirmed in evidence that he could not recall another case where a parent had been totally excluded from the LAC process for two and a half years. He accepted that Mother should have been receiving information from the school and had not received it.
  52. Criticism is made of the IRO for failing to robustly manage the Local Authority's implementation of the care plan or pursue the requirement for permanence. I have no doubt that Mr Moore is an extremely hardworking and dedicated member of the Independent Review Team and I am saddened to reach the conclusion that, in this case, he failed to bring independent, robust and effective overview of the Local Authority management of the X's plan.
  53. The independent reviewing officer is intended to be a robust mechanism designed to hold a Local Authority to account in the management of a child's plan. In this case, the opportunities to impose remedial timescales and to escalate inaction and delay were not taken.
  54. Mrs Allen is clearly an experienced social worker with the Local Authority and I was struck by her commitment to do what is right for X. She was visibly upset by the possibility that she might have in any way personally contributed to any difficulties X's may go on to experience. The criticisms that I have to make, and have made, are much more to do with the systems that are in place within the Authority rather than with the management of the case by the individual workers
  55. She, in her evidence, readily acknowledged that there have been difficulties in her department engaging with D. She confirmed that the Local Authority had failed to set up robust systems to manage X's care plan. She set out for me the difficulties that she had personally experienced in trying to work with D. She confirmed her commitment to working with her into the future but made clear that D, who is a forceful, tenacious and determined woman, can be very difficult to work with and that her presentation on occasion is debilitating.
  56. Ms Allen accepted that even allowing for the challenges of engaging with D, the department should have done more to work effectively with her and, indeed, had they done so, D's anxieties might have been alleviated.
  57. It is unusual to come across a case where a mother who continues to share parental responsibility is excluded from the LAC reviews, is not provided with the name of the social worker working directly with the child, is not provided with information about the child's school, receives no updates of his medical condition and no updates of his work with the therapeutic services. As far as I understand it, she was not even provided with redacted copies of the school reports.
  58. I am told by Ms Allen (as confirmed by the guardian) that X is doing well in placement and he is doing well at school. His school attendance is markedly improved at 98 to 100%. I am advised that he is moving away from one-to-one support at school. I am further told that his carers are able to meet his needs. As to his wishes and feelings I understand that X would like to return to the area in which he was brought up. X speaks of his current carers with affection. His desire to move is seen as a comment on location rather than the quality of the care he receives in placement. X has said different things to different people about where he would like to be. At times he has expressed the wish to return to his mother's care. The guardian also tells me that X does not feel that he is being listened to. The guardian feels more effort must be applied to reassure him his wishes are being listened to.
  59. Mrs Baker is newly appointed in this case. She comes to this case with a fresh pair of eyes. She is very concerned by the delay in the implementation of the plans for X. She has met with D during the course of these proceedings and, whilst acknowledging her to be a challenging and forthright woman, she was able to engage in discussion with her. The meeting, Mrs Baker told me, was not easy. However she considers that many of Mother's criticisms may be well-founded. Mrs Baker is further mindful that X is now in his early teens and that in all probability he will require the support of his family when he achieves independence. She is of the view that this possible eventuality must be recognised within the planning process and reviews of contact.
  60. The applications.
  61. It is for Mother to satisfy the court that there has been a material change of circumstances and X's welfare requires discharge of the care order. The mother relies on the fact that she continues to care for her two younger children without statutory intervention, and the positive contacts of August and October provide further evidence of material change. Most unusually in this case, however, I have no information at all as to Mother's engagement with the Authority in consequence of the way in which the Local Authority have managed the plan, and no means of determining Mother's insight and understanding of X's changing needs.

  62. The Local Authority accept that more should have been done to engage Mother. I understand that there is now an acceptance that she should receive information about the school that he attends, albeit on a redacted basis, that she should have the name of the social worker, that she should have the benefit of a clear system of reporting following the LAC reviews. The position they now take is very sensible. Nonetheless because of the way in which matters have progressed over the course of the last two years the court does not have information to enable it to assess Mothers willingness to engage with the Local Authority or to understand her level of insight as to the needs of X.
  63. The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority's continued intervention is proportionate. I am concerned that in the context of this application there is a lack of relevant information as to the nature, significance and degree of change made by Mother, and that it will be difficult to conduct the courts assessment fairly and appropriately unless that gap is filled.
  64. In my view, it will be necessary for the court, therefore, to receive some further evidence as to Mother's ability to engage and work constructively with and to understand and demonstrate insight of the needs of X. Furthermore, the court requires an update from the Local Authority as to:
  65. i) the implementation of their care plan as to placement, therapy and contact and
    ii) the detail of the services the Local Authority would provide or could provide to support X if he were to return to the mother's care.

    It is noteworthy that the court directed the Local Authority to provide details of the support services it would put in place if X were to return home by its directions of 4 November 2014. To date the Local Authority has failed to provide the details of those services.

    It seems to me that, absent this evidence, the court will be unable to complete the welfare evaluation. Counsel will need to address me as to the form of the additional evidence. I would be minded to direct the instruction of an independent social worker to complete a piece of work with D within four to six weeks. I am conscious that delay is inimical to X's welfare and that this court needs to make a determination of the application for discharge as soon as is practicable.

  66. I consider that such an assessment will be necessary to enable the court to complete the welfare evaluation. I am conscious that no Part 25 application was issued, but it is clear to me, having heard the evidence of the mother, of the Local Authority, of the IRO, and of the guardian, that a gap remains.
  67. I do not accept the submissions made on behalf of the Guardian that this court has jurisdiction to adjourn these proceedings for the sole purpose of monitoring the Local Authority albeit that I understand the concerns of the guardian. I am of the view, that the court has no jurisdiction to monitor the way in which the Local Authority manages its care order. That is a matter for the IRO and makes all the more important the need to ensure a robust review by the IRO is affected.
  68. Section 31(3)(A) further makes clear that the court must limit its consideration of the prescribed elements of the care plan as to placement, and as the commentary in the Red Book suggests that must necessarily be limited to the form of placement, not the detail of it. I am, however, nonetheless satisfied that, in this case, the court can and must look at the implementation of the plan and its effect on the child in order to complete the welfare evaluation.
  69. Insofar as the Section 34(4) contact application is concerned, and bearing in mind that there is no opposition to its discharge, I see no reason for that order not to be discharged today, save that I am minded to adjourn the question of whether there should be a defined order or an order simply at the discretion of the Local Authority until the discharge application has been determined.

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