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England and Wales High Court (Family Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> E (A Child), Re [2017] EWHC B11 (Fam) (23 February 2017)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2017/B11.html
Cite as: [2017] 4 WLR 99, [2017] WLR(D) 340, [2017] EWHC B11 (Fam)

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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 child and members of her 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: WX15C00482

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
WREXHAM DISTRICT REGISTRY
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE SOCIAL SERVICES AND WELLBEING (WALES) ACT 2014
AND IN THE MATTER OF E (A CHILD)

23rd February 2017

B e f o r e :

HIS HONOUR JUDGE GARETH JONES
(Sitting as a Deputy Judge of the High Court)

____________________

Between:
A LOCAL AUTHORITY (1)
-and-
THE MATERNAL AUNT (2)


Applicants
- and –

THE FATHER (1)
-and-
E (the child) (2)
by his Guardian



Respondents

____________________

Transcript provided by:
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DX26560 MOLD
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____________________

Miss Beattie of Counsel for the Applicant Local Authority
Miss Morris of Counsel for the Second Applicant
The First Respondent appeared in person and was not represented
Mr Sellars of Counsel, and Mr Morris-Jones, Solicitor, for the Children's Guardian
Hearing dates: 1st, 2nd and 5th December 2016 and 23rd February 2017

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    JUDGMENT

    23rd February 2017

    HIS HONOUR JUDGE GARETH JONES:

  1. I have before me the following applications which relate to a child I shall identify only as E, born in August 2005, who is therefore eleven years-old. The applications are:
  2. (i) an application by the Local Authority for permission to place E outside the jurisdiction of England and Wales, more particularly in the Republic of Ireland with his maternal aunt. This application is made pursuant to section 124 of the Social Services and Well-being (Wales) Act 2014, which came into force on 6th April 2016; and
    (ii) an application made by E's maternal aunt for a Special Guardianship Order under the Children Act 1989.
  3. The parties to these applications and their legal representation are as follows:
  4. (i) The Local Authority is represented by Miss Bettie;
    (ii) E's father (who is present today) represents himself, and he has been produced from custody during this hearing;
    (iii) E's maternal aunt is represented by Miss Morris;
    (iv) E's Guardian, Miss Lisa Hills, was represented at the hearing by Mr Sellars, and is represented today by Mr Morris-Jones;
    (v) with my permission, E's step-mother (who has attended Court today) has been permitted to come into the courtroom to hear this judgment.
  5. At the Final Hearing, in addition to the relevant documentary material (which had been produced, and which was included in the two trial bundles which I considered) I also heard oral evidence from:
  6. (i) the key social worker, Miss Halley;
    (ii) the father;
    (iii) the maternal aunt; and
    (iv) the Children's Guardian.
  7. Furthermore, I saw E for myself on the second day of the Final Hearing, for a meeting which was conducted in accordance with the relevant Guidelines issued [2010] 2 FLR 1872. E was accompanied to that meeting by his Guardian and solicitor. The meeting was tape recorded and an approved minute of the meeting was provided for all parties.
  8. The Local Authority's Plan for placement outside the jurisdiction was dependent upon the ratification and the approval of the relevant Authorities in the Republic of Ireland. That was initially delayed, but was ultimately provided. Accordingly, I made an Order reflecting my decision to sanction the placement to coincide with E's half-term holiday, reserving my judgment until today, that Order having been deferred because of this delayed ratification.
  9. The background to these applications

  10. E is the subject of a Final Care Order made by me on 10th June 2016. The Final Care Plan envisaged a placement of E with his maternal aunt, either under the Care Order, or alternatively under a Special Guardianship Order in the Republic of Ireland.
  11. The father was serving a custodial sentence at that time, and he was not able practically to care for E. The father has told me in the course of this hearing that his anticipated release date has been put back from July 2017 to November 2017, and he is ineligible for early release.
  12. At the outset of the Final Hearing, E had been placed with local authority foster carers, pending the resolution of these applications.
  13. E's birth mother died when he was approximately nine months-old.
  14. E's father, who hails from the North of Ireland, had moved to the Republic of Ireland, and had formed a relationship, initially with E's maternal aunt, before his relationship with E's birth mother. E's father and E's maternal aunt have a child, N (now an adult) who still lives at home with E's maternal aunt. Until comparatively recently E believed N was his first cousin. E has become aware and has seemingly accepted that N is his half-sibling.
  15. Following the death of E's mother, E was cared for by his maternal family in the Republic of Ireland for some time before E's father resumed his parental care. There is an extended family network on both maternal and paternal sides in the Republic of Ireland, and E is extremely familiar with these members of his family, with whom he has kept in touch by regular visits over many years. Any move by E to Ireland would by no means involve the introduction of "strangers" into his life. E's aunt and N are individuals with whom he has a close relationship. The father does not question in any way the care which E's maternal aunt could provide. In his oral evidence he said:
  16. "She would care for him like her own child"
  17. E's father subsequently formed a relationship with a Z, a Ukrainian national, to whom he is married. They have two young children of their own, a girl (two) and a son (one year-old). E's step-mother also has a child of a previous relationship, of Ukrainian origin, who is nine years-old.
  18. These three children, together with E, were the subject of the Care Proceedings, which led to Final Care Orders being made by me in relation to them also in June 2016. Their Care Plans provided for a rehabilitation/reunification of these three children into their birth mother's care, and this placement has proceeded, and these children and their mother are still based in North Wales, albeit in perhaps somewhat precarious circumstances.
  19. I make that observation because the father is serving a custodial sentence for financial fraud. He told me in evidence that his "finances have been frozen", and he referred to an application under the Proceeds of Crime Act. This potentially impacts upon the security of the accommodation available to E's step-mother and her three children (to whom I have referred), because this accommodation previously operated as the business premises of a joint venture which was unsuccessful, forming the backdrop to the difficulties to which I have referred.
  20. Furthermore, the father in evidence appeared to be uncertain about a return to North Wales upon his release saying:
  21. "I don't know where I will be living next November on my release".
  22. It should also be noted that the threshold criteria for the making of the four Care Orders (to which I have referred) under section 31 of the Children Act 1989, were serious. This was not merely suboptimal care by the father and his wife, but seriously deficient parenting with a likelihood of 'significant harm'. The document at page B1 of the core bundle makes this abundantly clear.
  23. It was on this basis that the Care Plans to which I have referred were approved by the Court, the Guardian supporting the plans proposed by the Local Authority.
  24. As the key social worker indicated in her evidence in these proceedings, a placement of all four children together would not be in their welfare for the following reasons:
  25. (i) It is unlikely that E's step-mother could manage the care for four children, where her sole parenting capability remains untested. Managing three children together is not an easy task, and there have been concerns about home conditions, and support has been provided;
    (ii) E and the older child living with E's step-mother had a previously poor relationship historically;
    (iii) E required therapeutic assistance and thrives when he receives one-to-one attention. A stable and secure placement for him is required;
    (iv) E's step-mother agreed to these split arrangements in June 2016, and wished to give priority to the care of her birth children. She did not actively seek E's rehabilitation to her care during those earlier Care Proceedings; and
    (v) If E's step-mother lost her accommodation, or became overwhelmed with her responsibilities, her additional care for E could jeopardise not only his care, but the care of her other children as well.
  26. There were also issues of domestic acrimony and violence between the parents, identified in the earlier proceedings, and the father has acknowledged to me his misuse of alcohol.
  27. Prior to June 2016, in correspondence passing between E and his father from prison, the father appeared to endorse the plan for E to stay with his maternal aunt, on the basis that this would be preferable to long-term foster care for E. The father's position during the Final Hearing has fluctuated, as I shall describe in a moment.
  28. E's maternal aunt is in her late-forties. She is in employment. N lives with her. She is an experienced and capable parent who has been thoroughly assessed, both by the relevant Authorities here and in Ireland. No party seriously disputes her capabilities and her attachment to E. Her motivations were clearly described in the witness box; she put herself forward to care for E so that he would not have to remain in foster care. She had no wish to supplant E's father, however, in circumstances where "E can't return home he should come to me".
  29. The revised plan for E's placement in Ireland with his maternal aunt envisaged direct contact between E and his father six times per year. Provision was made for direct inter-sibling contact on two of these occasions. There would also be provision for indirect contact.
  30. Since the proposed placement is favoured by the Local Authority and the Guardian under section 124 of the Social Services and Well-being (Wales) Act 2014, the Final Care Order will remain in existence, and with it the arrangements for statutory review, and statutory visits undertaken both here and in the Republic of Ireland.
  31. E's aunt is content for the placement to proceed under section 124 of the Social Services and Well-being (Wales) Act 2014, (indeed she now prefers this outcome) and in these circumstances would withdraw her application for a Special Guardianship Order.
  32. There has been provision for inter-sibling contact, and there has been occasional contact between E and his father in prison, since the making of the Final Care Order in respect of E. E has seen his father on three occasions, with a further visit anticipated.
  33. The Local Authority, the Guardian and E's aunt had in mind a transition of E's care at Christmas 2016. This was later revised because of the deferred decision by the Irish Authorities to February 2017. E could therefore, say farewell to his new school friends in this jurisdiction (E having started secondary school last September 2016) and he could then prepare for his new half-term in Ireland. There is no need for any lengthy period of introduction. E is familiar with his aunt, having stayed with her fairly recently over the summer holidays in 2016, and he has seen her during her visits to this country during the currency of these proceedings.
  34. E's relationship with N is perfectly satisfactory, as E made plain to me in our meeting.
  35. The Guardian has been clear in her preference for a placement under section 124 of the Social Services and Well-being (Wales) Act 2014. E has repeatedly indicated that he wishes to "test out" the arrangements in Ireland, and does not wish to enter into any irrevocable commitment. He is loyal to and he is close to his father. I suspect that prior to the appearance of E's step-mother on the scene, E and his father were a close family unit.
  36. In any event, E would favour a placement with his aunt in preference to foster care. He said "I would roll with it and not get angry" (see D9). However, he did not wish to make a final commitment:
  37. "It would not be fair as I would not have settled in. It wouldn't get to be my choice. I might not be happy living there, the Court won't have full information about how I think and feel".
  38. This appears to me to be a perfectly reasonable view point, and at eleven years of age, E's wishes and feelings cannot be ignored.
  39. In any event, the Guardian was clear that E's views should be respected, and a placement under section 124 of the Social Services and Well-being (Wales) Act 2014, provided the legal framework for a possible return, whereas the making of a Special Guardianship Order in the aunt's favour might not.
  40. All parties have proceeded on this basis with regard to the preferred mechanism for providing for E's placement outside the jurisdiction. However, whereas three parties (the Local Authority, E's aunt and the Children's Guardian) favoured this outcome, E's father did not.
  41. The applications to which I have referred were clearly in prospect when E's Care Order was finalised. I gave directions and timetabled this hearing on 10th June 2016, when E's father was at that time legally represented. I recorded in that Order my support for legal representation for E, and for E's father. E has been legally represented, E's father has not.
  42. I have no idea whether E's father sought legal representation, and if so whether it had been refused by the Legal Aid Authorities, nor on what basis this might be so. His financial affairs may have complicated the position. It is generally appreciated that whereas legal assistance is provided for Care Proceedings, any ancillary proceedings are not always covered by the Legal Aid Authorities. In any event, E's father is an articulate litigant on his own behalf, fully aware of the relevant issues, and fully capable of advancing his own case.
  43. In the Directions Order made on 10th June 2016, I provided for a written statement by E's father, which has been filed. I also made provision for a statement of evidence from E's step-mother to be filed by 14th November 2016, this timescale being subsequently extended. No such statement was filed.
  44. E's step-mother issued no Court application (for example for a Child Arrangements Order) and there was no application for a discharge of the Final Care Order in respect of E, and there was no appeal from the threshold findings, nor the Final Care Order made in respect of E.
  45. The course of these proceedings

  46. On the first day of the hearing (1st December 2016) the key social worker (Ms Halley) gave evidence, largely confirming her written documentation, and dealing more particularly with her visit to E the day before. E had wanted to talk to the social worker and maintained that he had not been influenced by his father. He indicated that he would "quite like" to live with his step-mother. He had been informed by his father that the older child living with E's step-mother missed E, and was not sleeping as a result. This appeared to be somewhat surprising, having regard to the previously reported poor relationship between the two of them.
  47. Furthermore, E said he was concerned about having no contact with his two younger half-siblings if he moved to Ireland.
  48. It is quite evident to me that E's father had sought to influence E's views. Included within my papers there is a note provided by another social worker (Rosanna Hughes), dated 1st December 2016, of a prison visit by E to his father. It is quite clear that the father discussed the pros and cons (more obviously the cons) of any move to Ireland, of having to make new friends there, of not seeing his father as frequently, and then seemingly having drawn E's attention to all the negatives, concluding:
  49. "If Ireland is where E wants to live then he [the father] would drop his objections to it".
  50. Ms Halley also informed me that E's step-mother had travelled to the Ukraine over the summer. E rarely mentioned his siblings in his foster placement. Furthermore, upon his release, the Local Authority had no automatic plan to rehabilitate the children with the father. The father would be subject to an assessment process, having regard to the poor parenting history, and in these circumstances E's future could not simply be put on hold, E being the only child deprived of familial care.
  51. Ms Halley confirmed that the only options for E presented by the current application were:
  52. (i) a placement for E in Ireland with his maternal aunt; or
    (ii) a continuation of local authority foster care.
  53. I should indicate that the evidence about E's altered wishes (to which I have referred) in Ms Halley's evidence came as a surprise (in particular to E's Guardian) having regard to E's previously recorded wishes and feelings, favouring a placement with his aunt in Ireland (to which I have referred above).
  54. Initially in his oral evidence, E's father reiterated the content of his written statement. He had no objection to E's aunt, however, he believed E should "go back to his mother", referring to E's step-mother. He believed E might encounter "adjustment problems in Ireland", referring to his own difficulty in fitting in when he moved from Northern Ireland to the Republic. He accepted that E was familiar with his aunt, and also familiar with N, and the father had no concern about the likely quality of care, and he acknowledged many of his own difficulties with regard to domestic violence and misuse of alcohol.
  55. The father "did not want to lose E" and he broke down when he contemplated this possibility. However, when presented with the options before the Court, he appeared to accept:
  56. "I believe it is in his best interests to be with his auntie".

    He indicated that his wife's views about E's return to Care were similar to his own, however, on the options presented he would favour E's aunt.

  57. It was on this basis that E's father accepted:
  58. (i) that E's Guardian should visit him after the first day of the hearing, to inform E of his father's wishes;
    (ii) that I would see E myself (as previously arranged) on the second day of the hearing (2nd December 2016); and
    (iii) that as E's father appeared to be giving his consent to E's placement in Ireland he could reflect on this over the weekend, and return to Court on the third day of the hearing (5th December 2016) to confirm to me his concluded view as a litigant in person.
  59. However, when he returned on 5th December 2016, E's father appeared to have reverted to his original unmodified position. On 5th December 2016, his wife had attended at the Court Office, and a minute from a member of the counter staff indicated what occurred. She did not pay the relevant court fee nor provide an application for issue. She did not produce any witness statement. She wished apparently to speak to the trial Judge. She was asked to take a seat in the waiting area. She decided not to stay and she left of her own volition before Mr Sellars (at my request and on behalf of the Guardian) had discovered her intentions.
  60. In his concluded evidence, E's father indicated that if E had been given the option of care with his step-mother "he would have gone for a different conclusion". E was still a child, placed in a difficult situation, and his views were "clouded by his love for his aunt". The father did not believe E was in a position to give consent. E was being kept away from his brothers and sisters, and uprooted from his school. E had been "groomed" for the decision to go to Ireland.
  61. Much of this evidence from the father appeared to ignore:
  62. (i) the nature of E's Final Care Plan approved by the Court;
    (ii) the serious threshold findings made by the Court;
    (iii) the absence of any appeal from those decisions; and
    (iv) the absence of any participation by E's step-mother over approximately five months.
  63. E's father applied for an adjournment of seven days, and/or an adjournment for an unspecified period for his wife to become involved (presumably this was at the father's instigation). I refused both of these applications:
  64. (i) E's father and step-mother had been given ample opportunity for engagement in these proceedings;
    (ii) E's father had every opportunity to obtain legal representation, and his status as a litigant in person was not unusual, indeed this has become the norm in Family Proceedings;
    (iii) E's timetable was pressing, and the consequence of delay was not in E's best interests;
    (iv) E's step-mother had not made any application to be adjourned, and an adjournment at the father's request at the eleventh hour (part heard in his evidence) to seek legal representation was entirely without merit, where he had not done so over the previous five months, and his prospect of obtaining such representation in the light of his own evidence was so uncertain; and
    (v) there was a risk of manipulation of these proceedings by the father for his own ends, to exert pressure on his son, to undermine/frustrate the aunt's application, and to unintentionally harm E in the process. E's Guardian, having already explained to E his father's position (as initially modified) would potentially have to convey a further and a contradictory development of his father's views to E.
  65. The father's endorsement would probably have added to E's peace of mind, as explained to me by the Guardian. However, this reassurance was seemingly unavailable, bearing in mind the father's change of heart.
  66. The legal provisions

  67. As a child in care, E's placement under section 124(1) Social Services and Well-being (Wales) Act 2014, required Court approval to enable him to live outside England and Wales in the Republic of Ireland. Under section 124(3) Social Services and Well-being (Wales) Act 2014:
  68. "The Court must not give its approval under (1) unless satisfied that:
    (a) living outside England and Wales would be in the child's best interests;
    (b) suitable arrangements have been, or will be made, for the child's reception and well-being in the country in which he or she will live;
    (c) the child has consented to living in that country, and;
    (d) every person who has parental responsibility for the child has consented to the child living in that country".
  69. In this instance, the Local Authority does consent; the Local Authority has proposed the placement in the Republic of Ireland.
  70. Under section 124(4) Social Services and Well-being (Wales) Act 2013, where the child:
  71. "… does not have sufficient understanding to give or withhold consent" [the Court may] "disregard subsection (3)(c) and give its consent if the child is to live in the country concerned with a … suitable person".

    In this instance E's aunt is proposed as the suitable person.

  72. Where E's father does not give his consent (and he is the only other holder of parental responsibility to be considered) under section 124(5) Social Services and Well-being (Wales) Act 2014:
  73. "… the Court may dispense with that person's consent if it is satisfied that …
    … (b) the well-being of the child requires the content to be dispensed with."
  74. E's father obviously has capacity to give/to withhold his consent. In this respect section 124(5) Social Services and Well-being (Wales) Act 2014, has replaced schedule 2, paragraph 19(5) Children Act 1989, for local authorities in Wales, because the definition of "a local authority" under section 197 Social Services and Well-being (Wales) Act 2014, refers to a County Council or County Borough Council in Wales.
  75. "Well-being" under section 2(3) Social Services and Well-being (Wales) Act 2014, includes the "physical, intellectual, emotional, social and behavioural development" of a child. It also includes "welfare" as interpreted in the Children Act 1989.
  76. One might, therefore, reasonably infer that "well-being" is wider than "welfare" since "welfare" is included within "well-being" as an element thereof.
  77. Section 2(2) Social Services and Well-being (Wales) Act 2014, indicates that "well-being" in relation to any person under the Act (including therefore a child) means "well-being" in relation to any of the matters which are identified in subparagraphs (a) to (h) of section 2(2) Social Services and Well-being (Wales) Act 2014:
  78. "(a) physical and mental health and emotional well-being;
    (b) protection from abuse and neglect;
    (c) education, training and recreation;
    (d) domestic, family and personal relationships;
    (e) contribution made to society;
    (f) securing rights and entitlements;
    (g) social and economic well-being;
    (h) suitability of living accommodation."
  79. In particular there is reference to "domestic family and personal relationships" of a child.
  80. Under part VI Social Services and Well-being (Wales) Act 2014, the Local Authority has a number of statutory duties towards looked after children, namely those within its care, or provided with accommodation. Paragraph 207 to 214 of the Statutory Code of Practice issued under part VI gives guidance to local authorities in Wales in relation to placements outside the jurisdiction, placement with a relative being one example given.
  81. The Local Authority's case is straightforward; here there is a suitable and a close familial carer for E, who can provide suitable care for him. This is obviously and self-evidently preferable, and in accordance with his well-being, when compared with either long-term foster care, or alternatively unsuitable care by his step-mother arising from the earlier finalised Care Proceedings, the assessments therein and the Care Plans endorsed, and the Guardian's final recommendation within those proceedings.
  82. E's aunt has already secured a favourable assessment and approval as the Local Authority's foster carer, this being a requirement of regulation 13 of the Care Planning, Placement and Case Review (Wales) Regulations 2015, as I shall set out below.
  83. Since this Court has utilised its jurisdiction in both the original Care Proceedings, and these current applications under Article 8 of Council Regulation 2201/2003 (namely Brussels 2R), on the basis of E's habitual residence in England and Wales, the notification requirements under Article 56 of Regulation 2201/2003 arise:
  84. "Where a Court having jurisdiction … contemplates the placement of a child … with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement."

    Article 56(2):

    "The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement…"

    Article 56(4):

    "Where the authority having jurisdiction under Articles 8 … decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State."
  85. There is, therefore, an inter-connection between these notification requirements to, and the subsequent consent requirement by the relevant Authority within the Republic of Ireland and the domestic (Wales) provisions under section 124(3)(b) Social Services and Well-being (Wales) Act 2014 (to which I have referred).
  86. This is reinforced by the provisions of the Care Planning, Placement and Case Review (Wales) Regulations 2015, which regulates all local authorities within Wales. Regulation 13 applies to a child in "the care of the responsible authority". Where that authority makes arrangements to place a child outside England Wales under section 124 of the 2014 Act:
  87. "… the responsible authority must take steps to ensure that, so far as is reasonably practicable, requirements corresponding with the requirements which would have applied under these Regulations had the child been placed in Wales, are complied with."
  88. The Regulation goes on to provide that the Local Authority's Care and Support Plan should detail the supervisory arrangements made by the Welsh Local Authority to supervise the child's placement outside the jurisdiction.
  89. In combination, therefore, these provisions provide:
  90. (i) for the domestic (i.e. Wales) assessment, and approval of a familial carer as a foster carer by a Welsh Local Authority, and the provision of the Care and Support Plan confirming the relevant details of the placement; and
    (ii) the notification and approval by the relevant foreign (i.e. Republic of Ireland) Authority for the placement proposed.
  91. The choreography of this procedure is obviously sometimes difficult to synchronise in practice, hence the delay in this instance.
  92. The Local Authority, assisted by liaison between the Central Authority for England and Wales, and the Republic of Ireland confirmed that the relevant approval by the Irish Authority would be delayed beyond the completion of the original Final Hearing. Once provided, approval by the Irish Authority would comply with Article 56 of Council Regulation 2201/2003, and section 124(3)(b) Social Services and Well-being (Wales) Act 2014.
  93. Accordingly, I heard submissions based on the premise that approval would be provided by the relevant Irish Authority (which was subsequently confirmed). If approval had not been forthcoming, then the application under section 124(3) Social Services and Well-being (Wales) Act 2014, could not have proceeded, and the Court would have had to re-visit the application for a Special Guardianship Order, as the only remaining application capable of Court sanction. These aspects were set out in the Court Order of 6th December 2016.
  94. By way of completion, paragraph 214 of the Guidance under Part VI Social Services and Well-being (Wales) Act 2014 (to which I have referred) contains the following sentence as its conclusion:
  95. "… A placement should only be agreed where the stay overseas is for a definite and limited period".
  96. No statutory provision is relied upon in relation to this Guidance. It is not always possible, either for the Local Authority or the Court, to foresee the duration of any placement outside the jurisdiction. That is the position in this instance. E's circumstances may change depending upon his father's release from his custodial sentence, his aunt's commitments in Ireland, his familial ties with his step-mother and siblings in Wales.
  97. There is a statutory limitation upon the duration of E's Final Care Order, and that would represent the ultimate definition and limitation period for any placement outside the jurisdiction. However, in circumstances such as these, it would not be appropriate to fetter the agreement of the Welsh Local Authority to a placement with a familial carer (otherwise considered to be in the best interests of the child) outside the jurisdiction, in circumstances where the stay overseas could not be defined nor limited at the outset. Certainly, the Court should not be constrained in that manner by this Guidance. Section 124 Social Services and Well-being (Wales) Act 2014, contains no such express statutory restriction on the Court's power to give its approval to the placement.
  98. Accordingly, I would ask the Welsh Government to reconsider and reissue paragraph 214 of the Guidance – a transcript of today's judgment to be forwarded to the Welsh Government by the Local Authority in these proceedings. I believe that the mandatory form of the final sentence of paragraph 214 of the current Guidance should be reissued in a qualified form to cater for the contingencies which are evident in this case.
  99. Some placements, quite obviously, are for a definite and limited stay. Others may not be so rigorously defined. This Guidance in an unqualified form (as above), I believe is erroneous, and it is unreasonable, and I do not regard the inability of a Local Authority in Wales (in this instance) to follow this current Guidance, either to:
  100. (i) invalidate that local authority's agreement to this placement; or
    (ii) to impeach in any way this Court's approval of the placement under section 124 Social Services and Well-being (Wales) Act 2014.
  101. The Social Services and Well-being (Wales) Act 2014 enacted by the National Assembly identifies a different and a novel test for dispensation of parental consent to a placement outside the jurisdiction of England and Wales, for local authorities in Wales.
  102. I am concerned with a child's "well-being", and whether this "requires the (parental) consent to be dispensed with", and not with dispensation on the basis that a parent "is withholding his/her consent unreasonably" under schedule 2 paragraph 19(5)(c) Children Act 1989, in relation to an English local authority.
  103. Accordingly it is no longer relevant, whether in this instance, the father's preference for a placement with E's step-mother and his resistance to a placement in Ireland with E's aunt, is reasonable or unreasonable.
  104. I conclude that "require" under section 124(5)(b) Social Services and Well-being (Wales) Act 2014, should be construed in accordance with the meaning attributed to that same word, used in section 52(1)(b) Adoption and Children Act 2002, namely:
  105. "… it has the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable".

    (see Re P [2008] 2 FLR 625 at paragraph 125, and Re B-S [2014] 1 FLR 1035 at paragraph 34).

  106. While I accept that the consequence of dispensation under the Social Services and Well-being (Wales) Act 2014, does not sever permanently a parent's parental responsibility for a child (as would a dispensation of parental consent under section 52 Adoption and Children Act 2002) nevertheless, I see no reason to follow a less stringent definition. The consequences of dispensation under section 124 Social Services and Well-being (Wales) Act 2014, potentially places a child outside the immediate legal jurisdiction of the parent, and depending upon the circumstances, considerable physical distance might be involved also.
  107. On this basis, considerations of proportionality would arise, and the advantages and the disadvantages of the domestic placement should be weighed and measured against the contemplated placement outside the jurisdiction. The Local Authority and the Guardian have in this instance, considered the two realistic options before the Court – a continuation of foster care in Wales, or familial care in Ireland.
  108. The position of the Guardian

  109. I have outlined already the stance adopted by the Local Authority, by E's aunt and by E's father.
  110. The Guardian indicated to me that the Local Authority's plan for E had been of longstanding duration, and endorsed by her since the Care Proceedings in June 2016, and her final report thereunder. At page E13, paragraph 4.23(a) to (h) the Guardian set out her reasons for the endorsement of a different Care Plan for E, as opposed to his siblings. That conclusion was accepted by the Court when endorsing E's Care Plan.
  111. As noted, the father was not in a position to offer care himself for E. E's step-mother did not contest the Plan and offer to care for E with the other children. In any event, her capabilities were and are stretched. E needed one-to-one attention and he thrived on this. His step-mother had less time available because of her other responsibilities.
  112. Accordingly, as the Guardian indicated in her more recent final report (see D18) the factors identified previously retained their validity. E's main relationship was with his father, next came his relationship with his aunt, and E's step-mother and the other three children came next. E had been consistent in wishing to live with his aunt while his father was serving a custodial sentence. He had sufficient understanding to give his consent, which was provided by E. E was anxious about timescales and he wished to proceed with the proposed arrangement.
  113. The Guardian believed that E was an emotionally needy child who had experienced significant harm. He had flourished in foster care, particularly when afforded greater attention there. E's aunt was the only individual able to meet E's needs at the present time, a critical need for E being that of belonging to his family, rather than being with strangers.
  114. It would be better if E's father could support the move and give his permission for E to depart for Ireland. If the father retained his opposition, care would need to be exercised with regard to the contact arrangements. That was the Guardian's evidence to me.
  115. Submissions

  116. In summary, the Guardian, the Local Authority and E's aunt submitted that the requirements for a placement under section 124 Social Services and Wellbeing (Wales) Act 2014, were met.
  117. E's father objected to the manner in which the decision was being made, and he wanted the Court to consider allowing E to live with his step-mother. He maintained that the evidence of the Guardian and the professionals was unfair.
  118. "To take E away from his siblings is the wrong decision".

    E was still, in his father's view "a child" unable to provide his consent.

    Conclusion

  119. There is no application for a Child Arrangements Order by E's step-mother, nor any application by his father to discharge the Care Order before the Court. However, if I examine the substance and not the form in relation to the father's plea to the Court to consider care by E's step-mother, in reality there is no change in the circumstances since June 2016, when the Court recently endorsed the Final Care Plan for E. There were serious deficiencies in parental care evident at that time.
  120. E's father currently is not able to care for E, and that remains the position now as it was in June 2016. His step-mother solely has enough on her plate, and in any event, my impression having seen and spoken to E, is that his aunt is higher in E's hierarchy of important relationships than is his step-mother. I believe that the Guardian is perfectly correct in that assessment.
  121. The father may wish to present a picture of a united cohesive family unit of four children, with parent and step-parent respectively, but the reality for E (I believe) is different. His experiences to date have been different from his siblings, and in any event, N is as close to E in familial terms as are any of his step-mother's three children and the emotional link is closer.
  122. I do not accept the father's description of this plan as a separation of E from his family. In reality it represents a unification of E with his family, in circumstances where his father is unavailable and where the second most important individual for E is available to care for him, namely his aunt.
  123. The legal framework which is proposed takes into account E's own caution, and it allows E's father to participate in future decisions with regard to placement and contact. E's aunt indicated by her counsel, that she would not impede E's reunification with his father in the future, if this was in accordance with E's welfare and his wishes.
  124. I am satisfied under section 124 Social Services and Wellbeing (Wales) Act 2014:
  125. (i) that suitable arrangements are in place in Ireland for E's reception and well-being there with his aunt, and in her care. Confirmation has been obtained from the relevant Authorities in the Republic of Ireland;
    (ii) E does have sufficient understanding to give his consent to this move, both to the Guardian consistently and to me, when I saw him on 2nd December 2016. I conclude from that meeting that E had properly weighed up the "pros and cons", and his decision was mature and reflected his best interests. E has, therefore, provided his consent for this move to the Republic of Ireland;
    (iii) Living with his aunt in Ireland would, in the circumstances of this case be in E's best interests. The evidence produced at the hearing in June 2016, and the assessments undertaken since then confirm this position. The professional opinion is favourable to this move, and it is universally maintained;
    (iv) E's father does not consent, but his opposition cannot prevail where E's well-being points in a different direction.
  126. I conclude, in these circumstances that E's well-being does require the dispensation of the father's consent to this placement. The consequences of not dispensing with the father's consent currently would be the maintenance of the arrangements for E's foster care in Wales. That would not be in accordance with E's well-being.
  127. Accordingly, I dispense with the consent of E's father, and pursuant to section 124 Social Services and Wellbeing (Wales) Act 2014, I approve of E's placement with his maternal aunt in the Republic of Ireland.
  128. I will give permission for a transcript at public expense to be obtained in this case. That will be disclosed to the parties, and as I have directed already I wish the Local Authority to forward a copy of the transcript to the Government in Cardiff, indicating my considerable reservations about the final sentence of paragraph 214 of the Guidance [part VI – Code of Practice on the exercise of Social Services etc.] which is currently in force for local authorities in Wales.
  129. End of judgment


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