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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (children) and W (a child), Re  EWCA Civ 232 (15 March 2007)
Cite as:  EWCA Civ 232
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE STYLER
STOKE ON TRENT COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE HOOPER
| Cheshire County Council
SW (The Mother)
Mr & Mrs W (The Maternal Great Aunt and Uncle)
|- and -
|DS (The Father)
CH (The Child)
CO (The Child)
L (The Child)
Mr & Mrs W (Maternal Grandparents)
|S (Children) and W (A Child)
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Ginnette Fitzharris (instructed by Russell & Russell – Solicitors) for the 2nd Appellant
Graham Bailey (instructed by Butcher & Barlow – Solicitors) for the 3rd Appellant
Remy Zentar (instructed by Poole Alcock - Solicitors) for the 1st Respondent
Julia Cheetham (instructed by SAS Daniels – Solicitors) for the 2nd, 3rd, 4th Respondents
Ginette Fizharris (instructed by Hall Smith Whittingham – Solicitors) for the 5th Respondent
Hearing date : 28th February 2007
Crown Copyright ©
Lord Justice Wall :
The issues raised by the appeal in outline
2. The final disposal of the application relating to CO shall be adjourned in order that the Director of Social Services shall consider re-amending CO's care plan.
3. In the interim, CO shall be placed in the care of Cheshire County Council
4. Cheshire County Council shall apply to re-list this matter for directions once the Director has had time to re-consider and a decision has been taken.
1. The case demonstrates the difficulties which can arise in care proceedings when there is a late change of stance by the local authority. I propose, for convenience, to deal with all three applications together, since they are all inextricably interrelated.
2. At first blush, I am unimpressed by the arguments advanced by the local authority. Subject to argument, a judge, in my judgment is entitled to invite a local authority to reconsider its care plan in relation to a child if the judge is of the view that the care plan is not in the interests of the child. It is a classic feature of Part IV of the Children Act 1989 (CA 1989) that the court cannot impose conditions on a care plan. If the court does not agree with the local authority's care plan it is placed in a very difficult position. It will either have to make a care order in relation to a plan with which it does not agree, or make other orders which do not involve the local authority and which may not serve the welfare of the child. Where a judge thinks a child should be adopted outside the family (as here) there is no way that objective can be achieved unless the local authority changes its care plan to permit that course to be followed. Accordingly, in my view, before facing that dilemma fair and square, and given the local authority's late (and in the judge's view inappropriate) change of care plan, my immediate reaction is that the judge was entitled; (a) not to make a final care order in relation to CO; and (b) to adjourn CO's case part heard in order to give the local authority time to reconsider.
3. This court on the permission applications in relation to CH and L will need to know the outcome of the local authority's reconsideration. It will need to be satisfied that the local authority has given full and proper consideration to the judge's judgment. In my view, a local authority cannot simply ignore such a request on the alleged ground that it is unlawful. For these reasons, an appeal by the local authority against the judge's decision to adjourn CO's case seems to me premature, but I nonetheless propose to list the local authority's application PTA + A as its appellant's notice plainly raises issues of importance which this court may wish to consider if permission is granted.
4. The critical question in the case in my judgment is whether or not the judge was right to make final orders in relation to CH and L until he knew the outcome of his invitation to the local authority to reconsider its position in relation to CO. Whilst on the face of it, the orders in relation to CH and L are both plainly right, it may be arguable that they should not have been made if the court was being forced by the local authority to reconsider its position in relation to CO. Equally, if the court was being constrained in relation to CO to make an order which it did not perceive to be in CO's best interests, that plainly had a knock-on effect, on the facts of the case, in relation to both CH and L.
5. I am unimpressed with the fact that it is the mother who is having to bear the burden of the applications simply because she is publicly funded. She was plainly out of the picture, and the only question is whether the children should be cared for within the wider family. The real appellants here are the maternal grand parents and maternal aunt and uncle. The former should be given notice of the applications. The latter are seeking permission to appeal, and if it is possible for the maternal grandparents to be represented on the applications, or at the very least to appear in person, I am confident that the court will hear them.
The hearing before us
Some basic propositions
It is submitted that the learned judge when faced with a cohate (sic) care plan cannot (emphasis supplied) adjourn the matter in order that the Director of Social Services shall reconsider the plan.
It is submitted that in asking the appellant authority to reconsider its position the learned judge did not adopt the "lesser of two evils" test. It is submitted that the options available to the learned judge in this case were the making of no order or approving the care plan.
We have heard much, as we have prepared for the implementation of the Children Act 1989, about partnership. One of those partnerships is the very important one between the court and the local authority, where the part played by the court is to consider all the facts that are presented to it by the local authority and to make a decision finally disposing of the case only when all of those facts are as clearly known to the court as can be hoped.
The interdisciplinary character of the family justice system emphasises the co-operation that should exist between the court and public authority. It is, from my perception, inconceivable that there should not be reciprocal respect between the court and public authority for their differing functions and differing views. Manifestly, the statutory responsibility post-care order remains solely with the local authority. It is equally manifest that the local authority will pay due regard to the function of the judge in giving judgment on the care plan after careful appraisal. Manifestly, the local authority will have greater regard for a judgment that is considered and that has embraced all the relevant circumstances and all the necessary expert opinion. I have no doubt that no public authority would wish the judicial appraisal to be preceded by anything less.
I have to ask the question, what on earth are we to do where a local authority refuses to be persuaded by what, in my judgment, is absolutely overwhelming evidence to the effect that their plan is flawed? They have had ample opportunities to review their stance. It would have been no discredit to them at all had they decided to review the position in the light of what has been said. They have chosen not to.
I cannot make a care order. These two children in my judgment, cannot be allowed to remain in the care of their mother. That must be prevented if it can.
The Judge is therefore faced with the dilemma with which this Judge was faced that, if he makes a care order, the local authority may implement a care plan which he or she may take the view is not in the child or children's best interests. On the other hand, if he makes no order, he may be leaving the child in the care of an irresponsible, and indeed wholly inappropriate parent.
It seems to me that, regrettable though it may seem, the only course he may take is to choose what he considers to be the lesser of two evils. If he has no other route open to him – and certainly the route chosen by the Judge in this case was one which, in my judgment, was not open to him – then that is the unfortunate position he has to face.
I have to say that this is not a position to which Judges who exercise jurisdiction in the family courts are unaccustomed. There is very rarely a right answer in relation to children - it is usually a case of trying to decide which is the less wrong one.
It is an unhappy position, where there is a dispute between all those whose professional duty it is to have the best interests of the children at heart, if they cannot reach agreement. But in those particular circumstances, as I see it, the Judge really has no alternative. He has to choose what he believes to be the lesser of two evils. That may be making a care order with the knowledge that the care plan is one which he does not approve, or it may be making no order with the consequences to which I have already adverted.
…. there are cases (of which this is one) in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the local authority.
Since in each case the evidence which requires to be called to satisfy the court as to the efficacy of the care plan will vary in substance and in degree, it is a matter for the good sense of the tribunal and the advocates appearing before it to see that a proper balance is struck between the need to satisfy the court about the appropriateness of the care plan on the one hand and the avoidance, on the other, of overzealous investigation into matters which are properly within the administrative discretion of the local authority.
I remind myself that it is particularly important, in circumstances such as these, for the court to be mindful that neither sympathy with relatives, nor exasperation with the local authority is the court's prime concern. The court's prime concern is the welfare of these children. It is the court's duty to scrutinise the local authority care plan with this principle in mind. The court is not bound to approve any decision of a panel convened by the local authority to make recommendations to it. It is pertinent, in my judgment, to remind the local authority that the director of Social Services is equally not bound to accept a recommendation of panel if he or she considers it to be contrary to the welfare of the child.
The local authority's decision making process: the history revisited
I find on all the evidence in this case that all three of these children, on balance, have been emotionally damaged as a result of the neglect and emotional abuse they have suffered when in the care of their parents. I must therefore have particular regard to their emotional welfare in deciding what order to make in each of their cases.
Ms B (the principal social worker in the case) identified in her first assessment why CH needs a placement separate from her siblings. Those reasons include CH's need to control and dominate her siblings, CH's resentment and violence when her siblings receive adult attention, her expressed wish to be placed on her own and her tendency to parent L. Ms B's initial assessment was for CO and L to be placed together. However, as CO became more secure in his placement, the evidence indicated, and I so find, that he became progressively more aggressive towards CH and L and non-complaint with his carers. That is by spitting, throwing objects, making rude gestures and by physical attacks. He would attack his siblings without provocation and leave substantial physical marks. He is described as being completely uncontrollable during temper tantrums. He is described by Ms B, and I accept, as insecurely attached with a predominantly avoidant style, someone who's (sic) emotions switch from being flat to full of rage. The frequency and intensity of his rages, I find, has been increasing and he now shows disturbing behaviour at school. Given that L can also display challenging behaviour, it was the judgment of Ms B that if placed together, CO's difficulties would impact on the care needs of L and vice versa. I accept these assessments by Ms B that these three children's welfare is best served by all being placed separately.
How did the local authority come to change its mind?
Unfortunately, DW was not able to attend that meeting, and so the panel announced that they were unable to make a recommendation. Following questions to Mr and Mrs W, the fostering panel deferred a recommendation and asked for the attendance of the supervising social worker at panel and a written statement of CO's needs and the implications for any carer in the short, medium and long term. It seems that as DW was unavailable to do this extra piece of work, the fostering team manager requested another supervising social worker, PA to meet with the (Mr and Mrs W) to discuss further CO's needs and the implication(s) for any carer in the future.
PA met (Mr and Mrs W) for three hours on 5th December 2006. Far from restricting herself to a written statement of CO's needs and the implications for any carer in the short, medium or long term, as requested by the panel, she embarked upon a complete re-assessment of (Mr and Mrs W). She recommended to panel that they had the skills to meet the needs of CO, but would need the support of the local authority to help them meet his continuing and complex needs in the future. The fostering panel, which met on 18th December 2006, duly approved (Mr and Mrs W) as kinship carers. On 20th December, the local authority locality manager, Mrs S, convened a meeting with the local authority's solicitor and Ms B to consider the care plan for the adoption of CO. She sought advice about overturning the conclusions of the fostering panel. However, she was advised that under present regulations, the adoption panel would conclude that if a kinship placement was approved, there was a duty on the local authority to place within the family. Mrs S therefore endorsed an amendment to the care plan for CO, substituting a foster placement with Mr and Mrs W for the previous plan for adoption.
I am bound to say I find it extremely alarming that the decision of a fostering panel in this case has triggered a large change of care plan for CO which was contrary to the considered view of the supervising social worker and about which the guardian was not consulted. In a complex case like this, I am extremely surprised that the guardian's view on such a change was not sought. In my judgment, the locality manager, Mrs S, endorsed this change of care plan, not because she believed that it was in the interests of CO to do so, but simply because she feared a care plan of adoption would not be approved by the adoption panel who, she was advised, would defer to the decision of the fostering panel. Such thought processes cannot sit easily with a duty to promote the welfare of the child as the paramount consideration.
The views expressed by the judge
It is fair to say that PA, in her three hour interview with (Mr and Mrs W) came to a different view (from PW) about their parenting abilities. What is clear to me is that PA did not know, at the time she interviewed Mr and Mrs W, what CO's specific needs were. She had no specific knowledge of this case or of CO's needs. In her evidence, she accepted that she relied on her considerable experience and spoke to (Mr and Mrs W) only in general terms. She interviewed (Mr and Mrs W) on 5th December. She said, in terms, she did not seems B's parenting assessment. PA's report is dated 7th December, the same date as a statement by Ms B prepared fort he panel, setting out her views of CO's needs both present and as he matures. It is clear, however, that the view of PA were the views adopted by the fostering panel.
In my judgment, when striving in an attempt to overcome previous procedural difficulties, there is a danger of the local authority overlooking the welfare of these children. The local authority and the guardian have put forward a strong case based on the behaviour of all three siblings that they should be placed separately. I agree with them. That is CH's expressed wish. I have already expressed by reasons why CH and L should not be placed together. I am now being asked to further delay the outcome of this case after 14 months to enable an assessment of (the maternal grandparents) to see if they could care for CH and L together, something which, in my judgment is not appropriate.
In relation to CO, I cannot finalise his case today. I propose to adjourn this final hearing to enable the director of Social Services to have an opportunity to consider re-amending CO's care plan in the light of my judgment. If the director chooses to amend CO's care plan, in line with the views of his own social worker and the guardian, this should allow CO's case to be presented to the next adoption panel. Once a decision has been taken, the court must be notified so that the court can give directions for the continued hearing of the case concerning CO. I regret to say that the application by (the maternal grandparents) for a residence order is refused.
The local authority's conduct after the hearing before the judge
On balance the evidence of workers assessments, foster carer's views (sic) research and professional judgments is that the best chance of a successful outcome for CO is to place him with Mr and Mrs (W).
Alongside the support to CO in his placement with (Mr and Mrs W) will be the potential support to (the maternal grandparents) in their care of L and CH and other extended family support, all of which will provide a network within this extended family.
Why must the case be reheard? And why by a High Court of the Family Division with authorisation to sit in the Administrative Court?
 Thus, if a local authority fails to discharge its parental responsibilities properly, and in consequence the rights of the parents under art 8 are violated, the parents may, as a longstop, bring proceedings against the authority under s 7. I have already drawn attention to a case where this has happened. I say 'as a longstop', because other remedies, both of an administrative nature and by way of court proceedings, may also be available in the particular case. For instance, Bedfordshire council has an independent visitor, a children's complaints officer and a children's rights officer. Sometimes court proceedings by way of judicial review of a decision of a local authority may be the appropriate way to proceed. In a suitable case an application for discharge of the care order is available. One would not expect proceedings to be launched under s 7 until any other appropriate remedial routes have first been explored.