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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 >> YY (Children: Conduct of the Local Authority)  EWHC 749 (Fam) (26 March 2021)
Cite as:  EWHC 749 (Fam)
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SITTING AT THE ROYAL COURTS OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
| Herefordshire Council
|- and -
|Child A and Child B YY
||3rd and 4th Respondents
|Child D YY
|Mrs XX and Mr XX
||1st and 2nd Interveners
|Re YY (Children: Conduct of the Local Authority)
Mr N Goodwin QC and Miss F Farquhar (instructed by Child Care LLP) for the 1st Respondent
The 2nd Respondent did not attend and was not represented
Miss E Isaacs QC and Mr M Maynard (instructed by Whatley Recordon) for the 3rd and 4th Respondents
Mrs J Crowley QC and Mr M Cooper (instructed by Waldrons) for the 5th Respondent
Miss K Skellorn QC and Miss D Thornton (instructed by Humfrys & Symonds) for the 1st and 2nd Interveners
Hearing dates: 22nd February to 19th March
Crown Copyright ©
The Hon Mr Justice Keehan :
Contents of Judgment
Paragraphs Introduction 1 - 11 Background 12 - 82 Law - Fact Finding 83 - 89 Law - Welfare 90 - 94 Findings of Fact 94 - 104 Events of 6th June 2019 104 - 125 Consent to Withdrawal of Life Support 125 - 138 The Special Guardianship Assessment Report 138 - 200 Disclosure 201 - 205 Analysis 206 - 219 Overall Observations 220 - 229 Conclusion 230 - 238 Appendix 1: Concessions Made to the Mother by the Applicant Appendix 2 : Concessions Made to Child A and Child B by the Applicant Appendix 3 : Concessions Made to the Mother by the Interveners Appendix 4 : Findings of Fact Sought by the Respondents and the Interveners against the Local Authority
i) the mother's application to spend time with the children (contact) dated 23rd September 2019;
ii) the local authority's application to discharge the care orders - on the basis that the court would be invited to make special guardianship orders in favour of Mr and Mrs XX - dated 8th November 2019; and
iii) the local authority's application to change the children's surnames from YY to XX dated 3rd December 2019 - by consent I granted this application in respect of Child A alone on 20th August 2020.
i) they had been assessed to be Gillick competent; and
ii) they wished to be separately represented from their children's guardian.
I so directed. Accordingly, only Child D was represented by the children's guardian's legal team.
i) the local authority; and
ii) the fosters carers, and prospective special guardians, Mr and Mrs XX.
Moreover, Child A and Child B sought findings of fact in respect of the alleged actions and failings of the local authority. I, therefore, gave directions for the filing and serving of schedules of the findings sought and for responses to be filed and served by the local authority and Mr and Mrs XX.
The Original Proceedings
i) the allegations of sexual abuse were not proved;
ii) the allegations of physical abuse were not proved; save that the mother had hit Child B on one occasion and both parents had used physical chastisement;
iii) the mother had behaved in an inappropriate sexual manner in relation to other men whilst the children were present in the home;
iv) the mother had a history of poor mental health, which compromised her ability to meet the children's needs consistently, as well as episodes of heavy drinking; and
v) the father presented a risk of significant harm to the children in relation to sexual matters.
"faithfully recorded what the children did and said. They are not to blame for the present situation; they have provided love and devotion in the care of these four children. They are to be commended for the work they have undertaken".
The learned judge found that
"the children now urgently require professional support; probably in the form of therapy and/or counselling. It is important to understand why they have made these allegations, which I have not been able to accept… I invite the local authority, in conjunction with the parents and the Guardian, to act swiftly to arrange such professional intervention as is considered appropriate."
i) the children's allegations could be explained in psychological terms by their growing up in a confused and unboundaried family setting;
ii) an agreed script with precise wording be used to inform the children of the outcome of the fact-finding hearing;
iii) the placement with the XX' had resulted in each of the children making remarkable progress;
iv) all four children were in need of therapeutic help in the long-term of varying nature and degrees but that this should await a decision about their permanent placement. He specified individual work for one child together with a psychotherapeutically led programme for the whole sibling group and their carers once permanency was achieved; and
v) the enforcement of direct, supervised contact "at this stage" contrary to their wishes and feelings would be likely to trigger their anxieties and risk destabilising the placement. However, once permanency decisions were made, "consideration [would] need to be given to promote face-to-face supervised contact with members of their family…". Direct contact was generally desirable unless there were strong arguments to the contrary.
Following the Original Proceedings
The Second Set of Proceedings
"…essential for each child's self-image and identity formation, to have balanced views, including positive ones, about members of the birth family whom they literally - and collectively - appear to demonise. In the long-term the likely impact of holding such negative feelings and views of the maternal extended family is harmful for their psychosocial development and also their future ability to form and sustain trusting relationships. It is for this reason alone very important that all four children remember and recover positive attributes and memories of their birth family. Indirect and direct contact would assist this process."
"it is concerned about the surprising degree of resistance to accept the clear judgement from the fact finding hearing by the Foster Carers and raises the option to move the children to Foster Carers who understand and support the reality as letting the children grow up not knowing the truth is likely to cause them emotional harm".
Following the second proceedings
The May 2018 Child and Family Assessment
Child C's Illness and the Events of 2019
Events Following Child C's Death and the Further SGO Assessment
"it cannot be in the children's interests to be LAC given their very clear views that they do not wish to be and the very limited change that we have achieved in moving the children's or carers' views about the birth family".
The possibility of a further psychological assessment was discussed.
"The local authority does currently hold concerns around some aspects of the care being provided to the children. These concerns have become more evident during the period of Child C's hospitalisation and thereafter. There is no doubt that the carers are committed to the children and have fully supported Child C to the point that she sadly lost her battle. However, the concerns that were raised during the court proceedings of 2016 have been magnified in respect of the foster carers views towards the birth family. This will need further robust assessment and consideration within the updating SGO assessment."
"I have completed the YY assessment with the view that I cannot recommend a SGO at this time due to concerns in relation to contact and identity issues. Following your comments Thursday I have also drafted an alternative ending recommending a sgo with a tight support plan. Could you see what you think of this. Gill would need to agree it. I am considering putting both stances to the court and inviting the court to choose between the two. I remain of the view that it is too soon to recommend a SGO but feel that this may be an acceptable alternative???"
The Law - Fact Finding
"If the evidence is such that the tribunal can say: "We think it more probable than not", the burden is discharged but, if the probabilities are equal, it is not.
" My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.
 As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future."
"98. The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a "lie" made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices.
99. In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.
100. One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton  Crim.L.R. 251.
In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt".
The Law - Welfare
"Special guardianship orders
(1) A "special guardianship order" is an order appointing one or more individuals to be a child's "special guardian" (or special guardians).
(2) A special guardian—
(a) must be aged eighteen or over; and
(b) must not be a parent of the child in question, and subsections (3) to (6) are to be read in that light.
(3) The court may make a special guardianship order with respect to any child on the application of an individual who—
(a) is entitled to make such an application with respect to the child; or
(b) has obtained the leave of the court to make the application, or on the joint application of more than one such individual.
(4) Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.
(5) The individuals who are entitled to apply for a special guardianship order with respect to a child are—
(a) any guardian of the child;
(b) any individual who is named in a child arrangements order as a person with whom the child is to live;
(c) any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);
(d) a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.;
(e) a relative with whom the child has lived for a period of at least one year immediately preceding the application.
(6) The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—
(a) an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or
(b) the court considers that a special guardianship order should be made even though no such application has been made.
(7) No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—
(a) if the child in question is being looked after by a local authority, to that local authority, or
(b) otherwise, to the local authority in whose area the individual is ordinarily resident.
(8) On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—
(a) the suitability of the applicant to be a special guardian;
(b) such matters (if any) as may be prescribed by the Secretary of State; and
(c) any other matter which the local authority consider to be relevant.
(9) The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.
(10) The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9).
(11) The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).
(12) Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.
(13) This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002"
"Special guardianship orders: making
(1) Before making a special guardianship order, the court must consider whether, if the order were made—
(a) a child arrangements order containing contact provision should also be made with respect to the child, . . .
(b) any section 8 order in force with respect to the child should be varied or discharged.
(c) where a provision contained in a child arrangements order made with respect to the child is not discharged, any enforcement order relating to that provision should be revoked, and
(d) where an activity direction has been made—
(i) in proceedings for the making, variation or discharge of a child arrangements order with respect to the child, or
(ii) in other proceedings that relate to such an order, that direction should be discharged.
(1A) In subsection (1) "contact provision" means provision which regulates arrangements relating to—
(a) with whom a child is to spend time or otherwise have contact, or
(b) when a child is to spend time or otherwise have contact with any person;
but in paragraphs (a) and (b) a reference to spending time or otherwise having contact with a person is to doing that otherwise than as a result of living with the person.
(2) On making a special guardianship order, the court may also—
(a) give leave for the child to be known by a new surname;
(b) grant the leave required by section 14C(3)(b), either generally or for specified purposes"
"Special guardianship orders: effect
(1) The effect of a special guardianship order is that while the order remains in force—
(a) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and
(b) subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).
(2) Subsection (1) does not affect—
(a) the operation of any enactment or rule of law which requires the consent of more than one person with parental responsibility in a matter affecting the child; or
(b) any rights which a parent of the child has in relation to the child's adoption or placement for adoption.
(3) While a special guardianship order is in force with respect to a child, no person may—
(a) cause the child to be known by a new surname; or
(b) remove him from the United Kingdom, without either the written consent of every person who has parental responsibility for the child or the leave of the court.
(4) Subsection (3)(b) does not prevent the removal of a child, for a period of less than three months, by a special guardian of his.
(5) If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—
(a) each parent of the child with parental responsibility; and
(b) each guardian of the child, but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.
(6) This section is subject to section 29(7) of the Adoption and Children Act 2002"
"Special guardianship support services
(1) Each local authority must make arrangements for the provision within their area of special guardianship support services, which means—
(a) counselling, advice and information; and
(b) such other services as are prescribed, in relation to special guardianship.
(2) The power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support.
(3) At the request of any of the following persons—
(a) a child with respect to whom a special guardianship order is in force;
(b) a special guardian;
(c) a parent;
(d) any other person who falls within a prescribed description, a local authority may carry out an assessment of that person's needs for special guardianship support services (but, if the Secretary of State so provides in regulations, they must do so if he is a person of a prescribed description, or if his case falls within a prescribed description, or if both he and his case fall within prescribed descriptions).
(4) A local authority may, at the request of any other person, carry out an assessment of that person's needs for special guardianship support services.
(5) Where, as a result of an assessment, a local authority decide that a person has needs for special guardianship support services, they must then decide whether to provide any such services to that person.
(a) a local authority decide to provide any special guardianship support services to a person, and
(b) the circumstances fall within a prescribed description, the local authority must prepare a plan in accordance with which special guardianship support services are to be provided to him, and keep the plan under review.
(7) The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of special guardianship support services in accordance with plans and reviewing the provision of special guardianship support services.
(8) The regulations may in particular make provision—
(a) about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;
(b) about the way in which a plan is to be prepared;
(c) about the way in which, and the time at which, a plan or the provision of special guardianship support services is to be reviewed;
(d) about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;
(e) as to the circumstances in which a local authority may provide special guardianship support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);
(f) as to the consequences of conditions imposed by virtue of paragraph (e) not being met (including the recovery of any financial support provided);
(g) as to the circumstances in which this section may apply to a local authority in respect of persons who are outside that local authority's area;
(h) as to the circumstances in which a local authority may recover from another local authority the expenses of providing special guardianship support services to any person.
(9) A local authority may provide special guardianship support services (or any part of them) by securing their provision by—
(a) another local authority; or
(b) a person within a description prescribed in regulations of persons who may provide special guardianship support services, and may also arrange with any such authority or person for that other authority or that person to carry out the local authority's functions in relation to assessments under this section.
(10) A local authority may carry out an assessment of the needs of any person for the purposes of this section at the same time as an assessment of his needs is made under any other provision of this Act or under any other enactment.
(11) Section 27 (co-operation between authorities) applies in relation to the exercise of functions of a local authority in England under this section as it applies in relation to the exercise of functions of a local authority under Part 3 and see sections 164 and 164A of the Social Services and Well-being (Wales) Act 2014 for provision about co-operation between local authorities in Wales and other bodies"
i) a thorough, comprehensive and evidence-based assessment of the children and of the prospective special guardians; and
ii) a comprehensive Special Guardianship Support Plan which sets out the services and support to be provided to the children and the prospective special guardians: see the Public Law Working Group's Best Practice Guidance in respect of Special Guardianship Orders.
Findings of Fact
i) the local authority failed to use HHJ Rundell's 2013 fact-finding judgment as a basis for challenging and changing the children's distorted perceptions of their family;
ii) the local authority failed to promote contact between the children and their mother;
iii) the local authority failed to use life story work and therapy effectively in order to dispel the children's misconceptions about their birth family;
iv) the local authority did not properly engage with the mother within the LAC process;
v) the local authority failed to manage the foster-placement properly and to ensure the children's emotional needs were met;
vi) the local authority failed to take any steps to preserve the children's sense of identity with and connection to their family; and
vii) whilst Child C was hospitalised, the local authority marginalised the mother and failed to accord her parental responsibility the weight and respect it deserved.
i) the interveners failed to accept the court's 2013 judgment and did not give each child an accurate narrative of their family life based on the facts found by the court;
ii) the interveners formed an entrenched negative view about the biological family that influenced the children's response to contact; and
iii) the interveners overstepped the boundaries of their role and considered that the parental responsibility delegated to them as foster-carers gave them superior rights over the children without proper recognition of the parental responsibility retained by the mother.
i) the LA failed to progress permanency planning for the children adequately;
ii) and/or sufficiently in a timely manner for the children, in contravention of their wishes and feelings, culminating in a delay of over six years. In particular, the LA's actions were characterised by a lack of communication, a lack of proper planning, and a lack of proper oversight of the children's recorded wishes and feelings over many years; and
iii) the LA failed to progress changing the children's surnames adequately and/or in a timely manner, in contravention of their wishes and feelings, culminating in a delay of over five and a half years before finally issuing an application on 3rd December 2019. In particular the LA's actions were characterised by a lack of communication, a lack of proper planning and a lack of proper oversight of the children's recorded wishes and feelings over many years.
i) we have already made concessions within the most recent response to mother with regard to issues surrounding delegated authority;
ii) the local authority will accept that important documents were not always provided to the interveners at an appropriate time, promptly or sufficiently in advance for them to consider, understand and assimilate the contents without feeling rushed or under pressure;
iii) that the number of different social workers for the children over the period of their placement would have added to communication difficulties, leading to a feeling that the children and carers were having to repeat information and further increased the risk of important information being overlooked. It would also inevitably have led to the need for the interveners and children to rebuild fresh relationships with professionals; and
iv) we have already made concessions within the response to mother with regard to there being a breakdown in trust in the relationship between local authority and interveners.
i) the findings sought by the mother and agreed by the local authority are set out in Appendix 1;
ii) the findings sought by the mother and agreed by the interveners are set out in Appendix 2; and
iii) the findings sought by Child A and Child B and agreed by the local authority are set out in Appendix 3.
Child C and 6th June 2019
"due to the urgency of the matter and her continued rapid deterioration, I am unsure how long more she will survive. "
This email was forwarded by Ms Leader to Mr Baird, the director of children's services, noting that the information in this email would need to be given to the parents and that
"mum is making her way to Birmingham and Karen Brooks will support her to say goodbye. Dad has decided not to attend for contact. We will now need to plan how this will be managed sensitively as the carers and siblings will also be present."
At 10:04am Ms Leader recorded that the mother would be arriving at the hospital about 11:30am to 12:00pm.
"discussed this with Liz and we agreed birth parents need to be informed about the medical advice. We need to consult with them but my legal advice is our duty as corporate parents is to accept the medical advice and avoid unnecessary suffering. If this is contrary to the parents wishes it is unfortunate but we need to take that course"
As I shall set out shortly this legal advice, as Mr Baird now accepts, was wrong.
"agreed with Liz that if the carers and siblings are able they should be a priority to be present with Child C when the life support machine is switched off. Mum should then be the next to say her goodbye to Child C before MGM, Uncle M and Aunt M are given this opportunity. Agreed that I need to check with hospital if it would be possible to delay the surgery to remove the pipes to enable the mother to say her goodbye before she dies."
At 11:05am Mr Baird's email, giving the local authority's consent to withdrawing life-support, was sent to the BCH. The email included the following
"My colleagues are also working with Child C's foster carers and birth family at this time and we hope we will be able to sensitively arrange for people to be able to say goodbye. We also appreciate Child C condition and the rapid deterioration that you set out"
At 11:08am in a telephone call between Ms Leader and members of the nursing team it was indicated that the process of withdrawing life-support had commenced and the surgeons would be removing the medical equipment from Child C's heart at midday during which procedure she would die.
i) it was a deeply distressing time for the children, the mother, the father and the interveners;
ii) I have not heard any oral evidence from the mother or from the interveners and consider it would be unfair for me to rely solely on the written evidence of the social workers who attended the funeral and/or case recordings; and
iii) the focus of the lay parties is and should be on the future rather than the troubled past.
Consent to Withdraw Life Support and other Life Sustaining Treatment - The Law
"Effect of care order.
(1) Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.
(a) a care order has been made with respect to a child on the application of an authorised person; but
(b) the local authority designated by the order was not informed that that person proposed to make the application, the child may be kept in the care of that person until received into the care of the authority.
(3) While a care order is in force with respect to a child, the local authority designated by the order shall—
(a) have parental responsibility for the child; and
(b) have the power (subject to the following provisions of this section) to determine the extent to which —
(i) a parent, guardian or special guardian of the child; or
(ii) a person who by virtue of section 4A has parental responsibility for the child,
may meet his parental responsibility for him.
(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.
(5) Nothing in subsection (3)(b) shall prevent a person mentioned in that provision who has care of the child from doing what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting his welfare.
(6) While a care order is in force with respect to a child, the local authority designated by the order shall not—
(a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made; or
(b) have the right—
(ii) to agree or refuse to agree to the making of an adoption order, or an order under section 84 of the Adoption and Children Act 2002, with respect to the child; or
(iii) to appoint a guardian for the child.
(7) While a care order is in force with respect to a child, no person may—
(a) cause the child to be known by a new surname; or
(b) remove him from the United Kingdom,
without either the written consent of every person who has parental responsibility for the child or the leave of the court.
(8) Subsection (7)(b) does not—
(a) prevent the removal of such a child, for a period of less than one month, by the authority in whose care he is; or
(b) apply to arrangements for such a child to live outside England and Wales (which are governed by paragraph 19 of Schedule 2 in England, and section 124 of the Social Services and Well-being (Wales) Act 2014 in Wales."
"57. It is common ground that the effect of the making of a care order or interim care order by virtue of section 33(3) CA 1989 grants a local authority parental responsibility. Section 33(3)(b) goes further, as it not only allows a local authority to share parental responsibility with a parent, but gives it the power to:
"determine the extent to which a parent may meet his parental responsibility for the child."
58. That power is however subject always to section 33(4) CA 1989 which states:
"(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare."
59. A local authority can, by virtue of the power conferred upon it by section 33(3) CA 1989, therefore limit the power of a parent to make major decisions regarding a child's life. The local authority effectively holds a 'trump' card, which it can choose to play, in the decision making process in relation to a child in care subject to section 33(4) CA 1989. An example of the use to which this power is routinely (and appropriately) put is in deciding where a child in care is to live.
60. In private law cases, some issues are considered so fundamental to a child's wellbeing that, even if a parent has a child arrangements order stating that the child is to "live with" them (an old terms residence order), that parent cannot make certain decisions without the written consent of every person who has parental responsibility or the leave of the court, including, under section 13 CA 1989, changing a child's surname.
61. Similarly, where there is a care order in place, the power conferred upon a local authority by section 33(3)(b) CA 1989 excludes certain circumstances where Parliament was of the view that the issue in question is too significant to be determined without either consent or a court order. These matters are set out in subsections (6) and (7) of section 33 CA 1989 and include at section 33(7)(a) CA 1989, causing the child to be known by a new surname.
62. Nowhere in the Act is there a similar restriction preventing a local authority from using its powers under section 33(7) CA 1989 to overrule a parent in relation to a forename, whether in relation to the naming of a new born baby who has been taken into care shortly after his or her birth, or at all."
"90. Whilst I may not necessarily agree with the precise way that jurisdictional issues have been approached or expressed in these very difficult cases, what is clear is that there is a cohort of cases where the common theme is that a party (whether it be a local authority or, often, an NHS Trust) has sought to bring an issue before the court, believing it to be of too great a magnitude to be determined without the guidance of the court, and without all those with parental responsibility having an opportunity to express their view as a part of the decision making process.
91. Most commonly, examples are found in the so called 'medical treatment' cases where, either an NHS Trust seeks a declaration from the court that they would not be acting unlawfully in pursuing or desisting from a form of treatment notwithstanding the parent's refusal to consent, or alternatively, a local authority seeks to invoke the inherent jurisdiction of the court and thereby to submit to the court's jurisdiction notwithstanding that care proceedings may have been open to them"
"In the medical treatment cases the decisions to be made may well be a matter of life and death. In the present case, the limitation on the exercise of parental responsibility proposed by the local authority, whilst not life threatening, is life affecting. Further such a decision potentially involves such a serious invasion of the Article 8 rights of the mother that I am satisfied that the court should invoke its inherent jurisdiction in order that it may either sanction the local authority's proposed course of action as in the interests of the children or, alternatively, to refuse to sanction it as for example being in breach of Article 8."
"I have reached the conclusion that there is a small category of cases where, notwithstanding the local authority's powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority, that the matter must come before the court for its consideration and determination."
i) Re E (A Child)  EWCA Civ 550,  1 WLR 594; and
ii) Re H (A Child) (Parents Responsibility: Vaccination)  EWCA Civ 664.
i) neither parent had had any contact with any of the children, including Child C, since late 2012;
ii) neither had been involved in any meeting or discussion with treating clinicians at BCH; and
iii) the circumstances in which they were told of the parlous state of their daughter on early morning of 6th June;
I could not accept or find that either parent had given informed consent to the withdrawal of Child C's life support.
Special Guardianship Assessment Report
i) Ms Straughan asserted that she had been instructed by her manager, Alison Forshaw, that she was to undertake the updated assessment as a solely paper-based exercise. She said she had been instructed not to undertake any visits to, or to have any discussions with, the interveners or the children for the purposes of preparing an updated report;
ii) Ms Straughan asserted that she had produced a first version of the updated assessment dated 11th October 2019. In section C of this assessment report there were highly critical and negative observations and reports on the views of the interveners about the children's mother and wider family and about their abilities to promote the children's sense of identity and contact with the family. It was recommended that the care orders in respect of the three children should not be discharged and SGOs should not be made in favour of the interveners; and
iii) Ms Straughan asserted that, in consequence of the local authority's looked after children ('LAC') reduction policy, she, and other social workers had been placed under pressure to recommend that SGOs were made in favour of foster carers and/or kinship carers. Further, she said she had come under pressure to recommend a SGO be made in respect of these children.
i) firstly, the court did not start to hear oral evidence until day 9 of this 20-day fixture; and
ii) secondly, the delay in commencing oral evidence and the impact of the ongoing disclosure enabled the parties to narrow the issues in dispute between the mother and the local authority; the mother and the interveners and between Child A and Child B and the local authority.
"The local authority's position at the last hearing was that contact should not progress to direct contact at this stage and challenged Dr Asen's assessment. Then local authority believes that there is significant use of emotive language in Dr Asen's report, which unhelpful and can be taken out of context; this raises concerned over the impartiality of the report and the conclusions he has come to. The local authority believed that there should be some work undertaken to progress matters, but that this must be done at the children's pace and taking into consideration their very strong wishes and feelings."
"The local authority believes that it can progress contact via the LAC review process. The local authority has significant concerns around the impact of direct and indirect contact and the children at this time, which are set out in detail within the local authority evidence. The parents are against any contact taking place between the children and their extended family; this is supported by the local authority, who share parental responsibility at this time."
"The local authority wishes to progress life story work, at a pace right for the children, and in line with their emotional needs. The local authority is committed to undertaking this work and sees this as a part of the social workers role, and not of a child psychiatrist. The local authority is committed to promoting contact between the children and the extended family, but this must be in line with their emotional needs."
i) it is disgraceful that this local authority chose to impugn the professional integrity of a highly respected child psychiatrist on the flimsiest of evidence. There was no evidential basis upon which any reasonable person could or should have questioned Dr Asen's impartiality; and
ii) life story work may well be within the ambit of the social worker rather than a child psychiatrist, but after a few months in early 2017 the local authority did no life story work with the children.
"[the court] is concerned about the surprising degree of resistance to accept the clear judgment from the fact finding hearing by the Foster Carers and raises the option to move the children to Foster Carers who understand and support the reality as letting the children grow up not knowing the truth is likely to cause them emotional harm"
"YY case. In court. Challenge from Judge P re contact for relatives, 'brainwashing' by social workers/foster carers. Cafcass to visit children soon. Children plan in overview which we support. GC to discuss with AC on her return."
The Director of Children's Services
i) neither Ms Meyer QC, her junior, Ms O'Malley and the legal teams supporting them, were responsible for the almost complete failure of this local authority to make timely disclosure of all relevant documents into these proceedings;
ii) the court and the other parties owe a considerable debt of gratitude to Ms Meyer QC, Ms O'Malley and their legal teams for the colossal amount of hard work they undertook, often late into the early hours, to remedy the failure of disclosure in this case; and
iii) this exceedingly late and continuing disclosure placed an exceedingly heavy burden on leading and junior counsel for the respondents and their respective instructing solicitors to read and assimilate the information contained within the documents. It required them to reflect and decide whether the information materially altered the way in which they wished to present their respective cases to the court and/or their respective witness requirements. Coming in the midst of a 20-day hearing it was inevitable that all of these tasks had to be accomplished to very strict timelines and deadlines.
i) at one stage social workers were being asked to consider what records and documents should be disclosed into these proceedings. This is completely wrong and must not happen again. Social workers are not (usually) legally qualified and accordingly they do not have the knowledge and experience to identify potentially relevant material for disclosure; and
ii) for reasons which I do not begin to understand, until a late stage in this hearing one of the local authority's solicitors was not granted access to the Mosaic system on which most social work recordings were stored. This was a bizarre omission/decision and it was plainly wrong.
i) Ms Straughan was instructed by Ms Forshaw to undertake a paper only exercise in order to update the special guardianship assessment report of May 2019;
ii) she was instructed by Ms Forshaw not to visit or contact the interveners and/or the children for the purposes of completing her updated report;
iii) Ms Straughan came under pressure from Ms Forshaw and Ms Cox to produce an update which recommended the making of a SGO in respect of the children in favour of the interveners;
iv) I do not find she was instructed to make such a recommendation, but she knew both of them supported the making of a SGO in favour of the interveners; and
v) Ms Forshaw signed off the 22nd October 2019 report and arranged for it to be filed at court and served on the parties when she knew that the observations, opinions and conclusions set out in section C of the report did not support or provide a rational basis for the recommendation in favour of the making of a SGO. Indeed, those matters of substance set out in section C only supported the dramatically opposite recommendation that a SGO should not be made.
i) to give the children a true sense of their identity;
ii) to assist them to have an accurate, fair and positive view of their mother, their father and of their wider maternal and paternal family; and
iii) importantly, to restore contact, be it direct or indirect, between the mother and each of the children.
i) the Secretary of State for Education;
ii) the Chief Social Worker;
iii) the Children's Commissioner; and
iv) the Chief Inspector of Ofsted.
In summary the local authority accepts the following:
From the Schedule of Finding sought on behalf of the Mother
That it failed to use HHJ Rundell's fact-finding judgment as a basis for challenging and changing the children's distorted perceptions of their family.
In that its approach to explaining and reinforcing the findings of HHJ Rundell of July 2013 with the children and with the foster carers was at times -
a. insufficiently robust
b. inconsistent when viewed overall
c. inadequately planned
and that as a consequence it failed to act in a decisive manner during an early window of opportunity to effect change in this area
The local authority specifically accepts that:
Dr Asen's report of 11th November 2013 emphasised the importance of informing the children about the judgement and proposed a meeting between the foster-carers, the social workers and Guardian to formulate a script.
The script did not make clear that the Mother had not sexually abused the children and it should have done so.
In her statement of the 19th December 2013 the mother sought to have the wording of the script addressed to include specific reference to the fact that mother did not sexually abuse the children.
Although the script was drawn up between Dr Asen, the local authority and the children's guardian, an accurate script was not employed when it should have been.
The local authority accepts that:
It did not ensure that Dr Goodwin (on 18th March 2014) Sharon Rudge, Wendy Healey & CAMHS (in 2014 & 2015) had the correct background information, including the findings of HHJ Rundell. The work of CAMHS therefore proceeded on a false premise, including that of serious sexual abuse as part of the children's history.
On the 18th March 2014 Dr Fiona Goodwin saw the children, with foster carers and social worker Lynette Chan in the child development clinic and subsequently recorded in her report of the 20th March 2014 "these children have endured an extreme level of abuse which included abuse of a sexual nature so in my view it is an imperative to include CAMHS in their overall management".
On the 24th March 2015 CAMHS approached the choice appointment with Child A with their understanding that she had endured severe and complex trauma over a prolonged period of time including "severe physical sexual and emotional harm by the parents" and recorded the diagnosis of a child "with complex emotional needs as a result of very severe physical sexual and emotional abuse endured over a considerable amount of time alongside her sibling group.
On the 29th April 2015 Wendy Healey the child and adolescent psychotherapist working with Child D took sexual abuse as a given part of his background and specifically anal abuse as explaining his constipation.
The record of the looked after children's visit by Rebekha Philips of the 28th May 2015 stated that "Mrs XX and Miss XX were the people that the children chose to trust to make disclosures to about their experiences with their parents and extended family".
The local authority accepts that
Until the work by Janet Watkins and Kathryn Heath in 2017, the local authority is unable to demonstrate from the records currently available that there was any attempt made to work with the children or foster carers so as to distinguish the single occasion the mother hit Child B (coupled with other physical chastisement) found by the court and those aspects that formed part of the children's allegations but were rejected by the court and must therefore accept that no such work was undertaken.
M/A1.10/A1.11 & M/B2.5
As a result of direct work with the foster carers in January 2017 by Janet Watkins and Kathryn Heath on the fact finding judgment the workers concluded that the reading of the judgment offered Mrs XX a different view of the children's family to her and that she had made the required shift to be able to move forward in respect of contact. In the light of all the information now available, both contemporaneous and subsequently, the local authority accepts that at that time, whilst progress had been made, greater consideration as to whether such shift was fully embedded and would be an enduring one was required before it should have been regarded as reasonable to reach that concluded view.
The local authority accepts
That in January 2017 Mrs XX reported to Janet Watkins that Child D had said his family should be arrested, Child C referred to them hurting her and Child A to them abusing her.
The local authority accepts
That on the 4th April 2018 the IRO Stacie Lane expressed her own view to the mother, when discussing the past, the findings of the court and her wish for the local authority to work with the children to help them accept the judgment that "I exercised caution about trying to persuade the children that their views about their experiences are entirely wrong. I accepted that children can have experiences that sometimes can be muddled however it wouldn't be helpful for their own psychological development and wellbeing to challenge all of their experiences and explain to the children that these experiences are wrong. I accepted that the court did not find family members culpable of causing sexual harm to the children however explained that children can be sexually harmed without physical evidence being present. The children did exhibit sexualised behaviour that was unusual for their age and unexplained therefore need to be mindful that the children need to feel able to talk to those professionals around them about their experiences when they are ready to talk about them and by denying their views on their previous experiences could marginalise the children" Further the mother and IRO subsequently communicated further on this point on the 5th April 2018 with the IRO seeking to reassure the mother that the foster carer and social worker were not promoting any suggestion that the children had been abused.
The local authority accepts
That Dr Iain Evan Darwood provided the coroner with a report on the 15th January 2020 which included that Child C had been removed from her biological parents for reasons of neglect and sexual abuse, information taken from the medical records available to him.
The local authority accepts
That in the period when Child C was hospitalised and following Child C's death in June 2019 the local authority were endeavouring to manage the needs of the surviving children, the relationships with the foster carers, mother and extended maternal family whilst at the same time trying to be respectful of the impact of shock distress and grief. Whilst they continued to find ways to work through this period of heightened emotions it has to be accepted that there was a poor working relationship with the foster carers and a breakdown in trust between the carers and the authority which resulted in the local authority being unable to fulfil completely its statutory duties in the period following Child C's death.
Mother - The local authority accepts that it failed to promote contact between the children and their Mother in that over significant periods of time it -
a. failed to proactively promote contact between the children and their mother
b. failed to achieve the correct balance between listening to the children with respect to their expressed views, wishes and feelings around contact and the development of clear, coherent plans to enable appropriate contact with various family members.
Further the local authority accepts that it should have made an application pursuant to section 34(4) of the Children Act 1989 for permission to refuse contact at least at the point at which the children declined to receive the indirect contact from their Mother in October 2014 until the indirect contact was re-established in March 2017. and therefore between October 2014 and March 2017 acted in breach of its duty under section 34(1) to allow reasonable contact between the children and their mother.
The local authority specifically accepts:
That it failed in its February 2014 core assessments it failed to analyse the merits of contact and recommended no preparatory or substantive steps by which it might be revived.
That in the years that followed the local authority gave considerable weight to the children's expressed views and emotional presentation when ascertaining their views regarding contact, discussing contact and discussing family and allowed those two factors to become the main drivers in its approach to contact during 2014-2015. During which time they failed to explore how they children might be helped to change.
The local authority accepts:
That both the case record of Janet Watkins for the 18th January 2017 and her statement of 21st February 2017 support the fact that during discussion of paragraph  of the fact finding judgment, Mrs XX noted to Janet Watkins and Kathryn Heath that the children were confused over the question the social worker put to the children[on the 5th November 2012] when Child A said she wanted to see family. The statement of Janet Watkins goes on to record that Mrs XX told Janet Watkins that Child A had been clear to her that she didn't want to see the family and that Mrs XX was adamant that she would not have stopped her doing so if she said she wanted to see them and reminded the workers that she had been supportive of contact with the birth parents.
The local authority acknowledges that whilst its focus in February 2017 was in working towards contact with the maternal grandmother in line with the recommendations of Dr Asen and the plan approved by the court on the 12th January 2017 and 22nd February 2017, the fact that at this time, and throughout those contact proceedings, the Mother did not press for contact did not absolve the local authority of its duty to lay proper foundations with the children and carers to assist with the development of possible future contact with the mother. Prior to the work undertaken by Janet Watkins and Kathryn Heath it did not do this adequately, work undertaken then led to the reintroduction of indirect contact in March 2017 but was not effective in achieving direct contact in the face of the expressed views of the children.
That whilst work was undertaken after that of Janet Watkins/Kathryn Heath to help the foster carers understand the value of the mother's role in the children's lives the local authority accepts both that Vicky Leader commented to Kirstie Gardener on the 19th June 2019 that there were 'concerns about the carers not being able to be in a position to consider a different view of the children having contact with their birth family", and that she planned to discuss "emotional aspects using a soft approach" and that when seen overall this was likely to be too little, too late.
The local authority accepts that it failed to use life story work and therapy effectively to dispel the children's misconceptions about their birth family in that:
the life story work undertaken and the therapy accessed was not, when viewed over the whole period adequately planned, targeted and implemented. Despite some periods of intense focused work it was not always consistently approached. As a consequence the early window of opportunity to effect change was missed and later positive work was not sufficiently reinforced. It is accepted therefore that the local authority failed to provide adequate life story and therapeutic support to the children.
The local authority specifically accepts that:
Dr Asen recommended in his November 2013 report that Child B access individual child psychotherapy, that the other three children did not require individual therapy but psychotherapeutic work involving the foster carers was needed for them to make sense of their history. By May 2014 Dr Asen was advising that Child B no longer required any special intervention and that Child C was in need of individual child psychotherapy.
In 2014/2015 the need for life story work was identified at each Looked after children review, to be co-ordinated with CAMHS/Therapeutic work.
On 30th September 2016 Dr Asen set out the negative impact on the children of not undertaking life story work.
The failure to undertake the work identified above contributed to the breach, as set out in paragraph 2 above, of its section 34(1) duty to promote reasonable contact.
Dr Asen's recommendations were not implemented. The judgments of HHJ Rundell of the 22nd September 2015 and 6th November 2015 criticised the local authority delay and approach to life story work and therapy. The local authority does not seek to go behind those criticisms. It is accepted that between 2014 and 2017 very little meaningful or effective life story work was carried out.
On 23rd March 2015 a six step plan for contact was set out at a Looked after children review with provision for life story work as a prelude to the introduction of contact when the children were ready.
Despite that plan the local authority failed to deliver the required service in that:
(a) The direct involvement of CAMHS with Child D concluded with a final session on 24th March 2015. The report from Wendy Healy of 29th April 2015 noted that Child D had confusion and mixed emotions about his birth parents. This confusion was noted in the Looked after children's review of the 9th September 2015. In 2016 Child D questioned whether XX had given birth to him and in the core assessment issues of regarding his identity and struggle to recall his birth family composition are set out. No sufficient or effective lifestory work was undertaken until the work of Janet Watkins in 2017.
(b) No therapeutic work was undertaken with Child B or Child C. As late as 16th July 2015 CAMHS said both girls were unlikely to meet its threshold for intervention. Lifestory work was first discussed with them 11th April 2016 and only covered their period in foster care. No sufficient or effective lifestory work was undertaken until the work of Janet Watkins in 2017.
(c) Child A undertook work with CAMHS between November 2015 and June 2016. No sufficient or effective lifestory work was undertaken until the work of Janet Watkins in 2017.
(d) On the 19th September 2017 Janet Watkins noted that further lifestory was not helpful at that time, the reasoning behind which was recorded in the looked after children's review record of the same date. Work was undertaken after this date by Hannah Ellis however this work was not sufficient to prevent subsequent assessments of the children recording that "they appear not to understand their lifestory" or CAMHS from recording when Child C first became unwell in May 2019 that she has little understanding of her lifestory.
In its 5th July 2019 Looked after children report the local authority concluded that "all children appeared not to understand their life story and it is unclear how much they know about their birth family apart that they were unable to live with them safely. There is a sense, although not communicated by the children, that they fear any connection with birth family might negatively impact their current living experiences with the XX'.
The local authority accepts that it did not properly engage the mother within the Looked After Child(ren) process at all times.
Between July 2018 and May 2019 it ceased sending the mother redacted Looked After Child(ren) review minutes and stopped inviting her to meet with the IRO (without good reason).
It did not send the Mother PEP minutes, save on the 22nd March 2017.
The local authority failed to manage the foster placement properly and to ensure the children's emotional needs were met in that
there have been times when oversight of the manner in which the foster carers were dealing with particular aspects of the children's care has not succeeded in achieving the necessary joint approach towards
• The reinforcement of the judgments of the court
• The value of birth family contact and matters of the children's family identity
• The limits of delegated responsibility
The local authority specifically accepts that:
It has not been sufficiently rigorous and consistent, throughout its involvement with the children, in ensuring that staff and carers fully understood, and complied with, the limits of shared or delegated parental responsibility and the need to recognise rather than compete with the birth parents rights.
From January 2014, after Dr Asen's initial involvement in November and December 2013 in explaining the Judgment to the foster carers and to the children, insufficient work was undertaken to re-address or reinforce with the foster carers and children the Court's findings and the consequences of those findings until January 2017. The local authority therefore accepts that during this period the children's erroneous beliefs as to the nature of their treatment by their birth family were left unchallenged and allowed to become entrenched. The robust work undertaken by Janet Watkins and Kathryn Heath in 2017 was itself not then reinforced.
The work undertaken following Dr Asen's 2016 report was not sufficiently reinforced once completed in 2017.
The Local Authority accepts that in September 2019 the Head of Service (Gill Cox) authorised a change in Child D's school in the face of the mother's objection. Mrs XX took him to visit a private school on 1 February 2019 without the local authority's knowledge or agreement. The SGO assessor's view was that the foster-carer's actions placed pressure on the decision-making process. The Local Authority accepts that a consequence was that it reduced the ability of the Mother to contribute meaningfully to the decision making on the issue, it reduced the ability of the local authority to give due consideration to the Mother's view and presented the local authority and mother with a virtual fait accompli.
The local authority accepts that in the matter of arrangements for contact between Mother and Child C between 27th May 2019 and 3rd June 2019, when mother requested that her contact be supervised by a social worker rather than the foster family, in attempting to devise arrangements that would best meet Child C's previous views and the impact of her illness and surroundings upon her they did not reach the correct balance and should not have permitted the presence of the foster family or a member of the foster family under circumstances where this could not have been the subject of proper advance planning, understanding of roles and free agreement to the arrangements.
Whilst the local authority does not accept that there has been no challenge to the foster carer's antipathy towards contact nor that steps were only taken to placate the carers. The steps taken by the local authority during this difficult and emotional time for all were not sufficient to effect change.
The local authority accepts that on a number of occasions it was concerned that the decisions and actions of the foster carers demonstrated a lack of understanding for the limits of their delegated authority. The local authority however must also accept that the records demonstrate both lack of response (in the case of change of surname) and reactive rather than proactive responses to individual events by the local authority. Advice, training and proper development of delegated authority tools with clear explanations tailored to this particular foster placement should have been provided to the foster carers to enable them to understand the limits of their delegated authority and their role as foster carers and these should have been revisited on a more regular basis. Whilst it was noted that this should have been undertaken at placement planning reviews and through the updating of the delegated authority the available evidence does not provide clear evidence of the manner in which this was done, if it was done at all, prior to 2019.
The local authority accepts that on the 11th July 2019 the case summary and case direction record noted that "it is distressing for the SW to be unable to have suitable access to build a relationship with the children and to be at risk of allegations and complaint. The social worker is not prepared to enter the house without support given the level of intimidation from the carers" in the light of those observations the local authority continued to work to manage the placement however has to accept that it was not always effective in doing so at this time.
The local authority failed to take any sufficient steps to preserve the children's sense of identity with and connection to their family in that:
It failed to take any or any sufficient steps to ensure the preservation of the children's association with their surname until such time as either valid parental consent had been received or court authorisation had been granted.
It accepts that this was in breach of section 33(7) Children Act 1989.
It accepts it took no steps to prevent the foster carers from changing the Children's surnames to XX in breach of its statutory duty under section 33(7).
It accepts that as early as November 2013 the local authority was aware that the children called the foster carers mum and dad and failed to intervene, this practice was referred to without comment in the February 2014 core assessment.
It accepts that the April 2014 Looked after Child(ren)'s report by Rebecca Philips stated "if the children want to be known by a different surname they can choose to do this without/before legal name changes are made. and that in October 2014 the children were expressing the wish to be known by the surname XX.
The actions of the local authority relating to the use of the surname XX was not predicated upon the receipt of any valid consent by the mother.
Whilst Child C was hospitalised HCC marginalised the mother and failed to accord her parental responsibility the weight and respect it deserved in that
The local authority accepts that it did not approach the issues of parental responsibility and consent to serious medical treatment in the correct manner.
The local authority accepts that their approach, whilst not intending this consequence, would at times have resulted in the mother feeling marginalised, would have diminished her exercise of parental responsibility and was not correct.
That there should have been consultation with the mother and there was not.
That the local authority should have made it clear to the hospital that there needed to be consultation with the mother and it did not attempt to do so until 31st May 2019.
Further the local authority accepts that the absence of any established protocol or immediate forward planning upon Child C's admission to Birmingham Children's hospital for alternative situations, including deterioration of Child C's condition, made an already difficult time with heightened emotions more stressful and reactive than needed to be the case. As a result important opportunities to deal with issues in a calmer, more reflective and considered fashion were missed/lost.
The local authority specifically accepts that:
It did not have any policy in place defining its procedures where issues of consent arose in respect of palliative care for looked after children nor did it refer the matter to the Court for a best interests decision.
It gave consent to the following medical procedures for Child C without any discussion with the mother or any application to the court for a best interest's decision:
On the 29th May 2019 to heart surgery if the medical team felt she would die without it.
Despite being aware of the gravity of Child C's situation and clarifying with the hospital on the 29th May 2019 of the need for them to be informed if the hospital were intending to remove Child C from life support. They did not discuss this possibility with the Mother.
It gave consent to the following medical procedures for Child C without any discussion with the mother or any application to the court for a best interests decision:
On 31st May 2019 for a biopsy
On 31st May 2019 7.8 - for any medical treatment necessary to save Child C's life and to any test required to understand or treat her effectively.
It should have arranged for a meeting involving the mother and the hospital, that this was not in fact achieved before Child C's death and should have been organised earlier.
Despite agreeing, on 4 June 2019, that a planning meeting should be convened with the hospital, no such meeting took place because Child C deteriorated on 6 June 2019 and that it could reasonably have avoided such a situation if it had operated proper procedures and exercised its own parental responsibility by planning in advance for such an eventuality.
On the 6th June (after Vicky Leader spoke to and consulted with the mother at approximately 09.34 and at approximately 10.24 about the hospital proposal) at approximately 11.04 Chris Baird gave the local authority's consent to the implementation of a palliative care regime. Child C's death was recorded at 11.54. Although the mother accepts that the local authority was entitled to treat the views expressed by her over the telephone as indicative of consent it is accepted by the local authority that forward planning would have reduced stress and the sense that the process was rushed. It is accepted that the social worker was notified by the hospital at 08.39 that the hospital was seeking consent to remove life support and that an hour passed before the mother was asked for her consent. It is not asserted that this was a deliberate or callous delay, however it is accepted consent should have been sought more promptly.
The local authority accepts that failure to consult with the mother in advance about the possibility of a rapid deterioration in Child C's condition contributed to the mother not being able to say goodbye to her daughter before she died. The need to plan goodbye visits was first mooted on 29 May 2019 . Ultimately Child C's life support was withdrawn before her mother reached the hospital. This could and should have been avoided The local authority should have gained greater clarity from the hospital and offered greater clarity to the mother around the timing of the removal of life support and the possibilities available, if Child C's clinical situation allowed for this, for the delay of such step until such time as all desired appropriate goodbye visits could be made. Whilst team manager Vicky Leader raised with Margaret Farley in a call at 11.22 whether it would be possible to delay the procedure, as mother was close to arriving at the hospital, Margaret Farley advised that she would struggle from a health perspective to do so, the team manager was not able to press the point. When the social worker had discussed consent with the mother at 09.34 it was clear that she wanted to say goodbye to Child C before she died. Chris Baird has acknowledged that "the request to move to palliative care could have been delayed, to enable M more time to travel to Birmingham Children's Hospital from Hereford" and that any future protocol should require the local authority to work with the hospital to allow the parent time to attend unless the delay would cause the child to suffer unduly.
The Further concessions arising from the responses of intervenors to Mother's schedule.
From the Schedule of Finding sought on behalf of Child A and Child B
Children section A: The local authority accepts that its approach to permanency planning resulted in drift and delay for the children. In particular in relation to the progression of an application for special guardianship there is a lack of evidence of consistent management, oversight and planning which has substantially contributed to the delay in bringing any application for permanency before the court for over 6 years. Over that time there has been inconsistency of communication around the progression or otherwise of the special guardianship process. As a result the local authority despite regularly inviting the children to express their views did not properly consider and weigh the children's elicited feelings and did not take prompt action upon them.
The local authority specifically accepts that:
Children section B: The Local authority accepts that in the matter of the use and change of the children's surnames it demonstrated indecision, poor planning, complicity in allowing the children to use XX in the place of YY without legal authority or proper parental consent and poor communication around the matter of use and change of surname . That although the social workers endeavoured to involve the parents in the discussion of issue, sought legal advice, despite the clearly recorded wishes of the children, it delayed in bringing the matter before the court. The indecision and delay in bringing the matter before the court spanned in excess of 5 years.
The local authority specifically accepts that
(a) They felt that these infrequent 'contact discussions' led to a sense of stress and intrusion;
(b) Absent any detailed therapeutic work they had no expectation that the children would change their views about contact;
(c) They felt protective and defensive of the children's emotions. They did not want them to feel unhappy, unsafe or distressed;
(d) They felt protective of the security of the placement and what they felt was the children's 'recovery';
(e) They allowed the children to see the occasional 'contact discussions' with their SW/IRO as an exercise in stating their wishes and feelings before being able to move on and resume their settled life in placement;
(f) Specifically, within that dynamic, the foster-carers did not carve out sufficient opportunities for the younger children to express thoughts or questions away from the negative views of the older children about (i) past events and /or (ii) professional visits.
(a) Following Child C's death when the foster-carers (Mrs XX in particular) were in a state of heightened emotion, grief, uncertainty and reactivity;
(b) When existing SW/FSW professionals have moved on
"MGM said she was not asking the foster carers to dismiss what the children had said and that she understood that the children were adamant they had been abused by family members. She [MGM] then pleaded with the foster carers to consider that there may be other reasons as to why the children have been making the allegations. She said that one reason could be that they maybe wanted to stay with the foster carers. Mrs XX immediately rubbished this suggestion, but MGM remained calm and, a little bit later, asked the foster carers again to consider other reasons as to why the children may have been making the allegations. Miss XX said that she and her mother were supporting the children and had been trying to get the children's views across. MGM pointed out that the years before the children had come into foster care would have had an effect on their lives including positive experiences they had had. Miss XX replied that she and her mother did not know the positive things and events as the children only talk about the negative ones. Mrs XX then said that she accepted the judgement '100% but we can't ignore what the children have said and what they've put us through'. MGM repeatedly stated that the foster carers had done an 'amazing job' and that the children had come into a loving family and that the foster carers had given the children stability. She added that the children need to have 'the positives about their past remembered…to bring out good memories so that they can integrate them' and she pointed out that no life story work had been done with the children about the time before they came into foster care. At the end of the meeting - which lasted about 100 minutes - there was a collaborative conversation which resulted in Mrs XX suggesting that, with regard to the life story work, she would be willing to meet with MGM in the presence of a third party such as the children's Guardian. She acknowledged that it was very important for the children to undertake life story work and that it was important for them, the foster carers, to understand and know more about their lives with their birth family."
(a) Been perceived by the children, despite the foster-carers' efforts to mask the same;
(b) To have reinforced the children's own frustration with LA procedures and professionals; and
(c) To have reinforced the children's stance on their major issue of contention with social work professionals (birth family contact and LSW). In particular:
(a) Before Dr Asen's work in late 2016 and Janet Watkins' from January 2017 they had insufficient information or skills to support the children in taking any different view of birth family issues. The situation was made worse by the foster-carers' emotions, fears and frustrations including their sense of stress, intrusion, protectiveness and defensiveness at times when contact issues were discussed;
(b) The children learned that their trusted carers were not challenging their ongoing narrative. Instead, they learned that they would continue to receive sympathy, empathy and attention in response to that narrative;
(c) The occasions when the foster-carers unintentionally conveyed negative emotions to the children in respect of professionals coming to talk about contact were likely to have added to whatever complex emotions each individual child was feeling;
(d) The occasions when the foster-carers allowed the children to see the 'contact discussions' as an exercise in stating their wishes and feelings before being able to move on and resume their settled life in placement were likely to have contributed to each child seeking to close down such discussions and to avoid whatever complex emotions each individual child was feeling;
(e) Following Dr Asen's and Janet Watkin's work, the foster-carers had better information, knowledge and skills but have acknowledged that work was marred by feeling under pressure of time and fear that the children may be removed from their care. They were aware that the children demonstrated partial engagement/partial resistance to Janet Watkins which added to their anxiety. On occasions when those different (but still negative) emotions were unintentionally conveyed to the children by their trusted carers it was likely to have added to whatever complex emotions each individual child was feeling and contributed to their rejecting the professionals and their work.
(a) The protective and defensive way in which they responded to the children's ongoing narrative (of abuse) and their general reluctance to see or to talk about their birth family members;
(b) The emphasis they placed upon the children's stated wishes and feelings;
(c) Communicating frustration about SW and FSW changes (and periods of non-allocation) which they perceived to have a negative impact upon the children;
(d) Communicating frustration about changes within LA care planning which they perceived to have a negative impact upon the children;
(e) Communicating frustration about life story work and direct contact (for MGM) being introduced under pressure of time and against a backdrop of no contact and adherence to the children's wishes (2013-2016);
(f) Communication of distress at being told that the stability and the continuation of the placement were under threat.
1. Notwithstanding that a Child and Family Assessment was completed on 3 May 2018 recommending that special guardianship orders were in the welfare best interests of the children, the local authority thereafter wholly failed to undertake a robust, analytical, evidence-based and, ultimately, reliable special guardianship assessment of the children's carers.
2. In relation to (1) above, the local authority failed to ensure that there was a proper management and/or supervision structure in place such that the failures of the assessment process were not recognised or remedied by the local authority in any way. In particular:
(a) The SGO assessment carried out by Kathryn Straughan after Child C's death was inadequate in that -
i. Kathryn Straughan, was instructed by her manager, Alison Forshaw, to undertake a 'paper only' assessment after Child C's death; or
ii. Kathryn Straughan carried out a 'paper only' assessment without informing Alison Forshaw; or
iii. Alison Forshaw knew that Kathryn Straughan was carrying out a 'paper only' assessment but permitted her to continue and took no steps to intervene or direct that she should hold face to face discussions with the children or Mr and Mrs XX.
(b) During that assessment Kathryn Straughan failed to hold any face to face discussions with the children or Mr and Mrs XX;
(c) During that assessment Kathryn Straughan relied in part upon the written recordings entered by others on the Mosaic system;
(d) Alison Forshaw received an SGO report from Kathryn Straughan on 11 October 2019 which advised unequivocally against SGOs but she failed to support the conclusions her social worker had reached. This prompted Kathryn Straughan's resignation on 11 October 2019;
(e) During 2019 the local authority operated a 'LAC reduction policy' whereby all social workers, team managers and heads of service were required to consider which children could cease to be looked after. The YY children were placed, by Gill Cox, on the list of children to whom that policy applied. Senior management failed to put in place the necessary checks and balances that would ensure team managers and social workers would not feel under pressure to produce 'results' based on numbers rather than proper welfare evaluations;
(f) From early 2019 onwards there was a tacit assumption made by many of the social workers within the Children's and Fostering teams that there should be SGOs and the May 2018 Child & Family Assessment said as much. The local authority's practice of drafting SGO support plans in advance of an SGO report contributed to the sense that SGOs were a foregone conclusion;
(g) Alison Forshaw caused Kathryn Straughan to believe that she had to change her 11 October 2019 SGO recommendation and bring it in line with 'the local authority's view', by impressing on her, in supervision, that she, Alison Forshaw, and Gill Cox both supported SGOs. Alison Forshaw asked her to 'revisit' it, resulting in Kathryn Straughan drafting a third SGO report in late October 2019, this time supportive of SGOs;
(h) Alison Forshaw approved the late October 2019 SGO report despite the obvious contradictions between its analysis and its conclusions;
(i) Despite being sent the 11 October 2019 SGO report by Alison Forshaw, Gill Cox did not read it [NB: to review after Friday's evidence];
(j) Despite being sent the late October 2019 SGO report by Alison Forshaw, Gill Cox only read its conclusion;
(k) The result was that the head of service, Gill Cox, gave her approval to an SGO report that she had not read and which did not reflect the actual conclusions reached by its principal author, Kathryn Straughan;
(l) The local authority (from Gill Cox, head of service, down) now accepts that recommendations for SGOs should not have been made in October 2019 and that the assessing social worker's analysis militated against such orders being made;
(m) The local authority failed to disclose the 11 October 2019 report until the second week of the 2021 hearing. Insofar as Alison Forshaw has asserted that there was a version of Kathryn Straughan's SGO report emailed to her on a date before 11 October 2019 with positive and negative recommendations presented 'in the alternative', this has not been produced by the local authority.
3. The local authority does not have proper mechanisms in place to ensure that social care records and other material from within the local authority are subject to a timely, proactive and impartial disclosure process. That lack of process has interfered with and prevented proper disclosure within these proceedings resulting in (but not limited to):
(a) The late provision of documentation that should have been provided earlier in the proceedings.
(b) The loss of at least eight days of court time due to the need for late disclosure to be read before oral evidence began.
(c) Making the case advanced by those representing the respondent and interveners more complex and challenging by the continuous late provision of vital documents.