B e f o r e :
HER HONOUR JUDGE CARTER ____________________
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Counsel for the Local Authority: Ms Alison Hunt instructed by Natalie Booker, Lincolnshire CC Counsel for the Mother: Ms Olivia Bennyworth instructed by Sarah Keeper at Bridge McFarland solicitors Counsel for the Father: Ms Gina Allwood instructed by Chrystal Theofanous, Sills and Betteridge solicitors Solicitor for the Children: Ms McGowan of Pepperell Solicitors ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
Introduction:
In this case I am concerned with a child R. R was born on the 2 November 2009, and therefore is aged 13.
Parties and their positions :
The application before the court is for a care order brought by Lincoln County Council.
The mother (M) and father (F) accept the threshold is met, but they oppose the making of a care order.
The Guardian supports the application.
History:
There is some relevant history to this case.
R was born in 2009. She is part of a large sibling group, who were the subject of extremely neglectful and abusive parenting. R was born withdrawing from substances.
R was taken into foster care when she was approximately five years old and lived with one of her siblings. She lived in foster care until she was 6 and a half, when she was adopted with her younger brother by M and F.
R managed quite well in the early part of her childhood, but as she came into her adolescence her behaviour became increasingly challenging.
Her mother had contacted the local authority in February 2022, and informed the local authority that the family were struggling to manage R's behaviour, suggesting that the family were in crisis and could not continue any longer. R's behaviour at that time was violent and extreme.
In March of 2022 R was excluded from school because she had assaulted a teacher. She had gone to hospital, and such was her distress that she tried to swallow a face mask in front of doctors, and tried to take an overdose of tablets, and they therefore admitted her. R engaged in extremely violent self damaging behaviours.
R went home in April 2022, but it is clear that was without any proper support put in place for the family. At the end of April 2022, she was placed in a residential unit after her parents signed a section 20 agreement to enable the local authority to accommodate her. It was hoped that there could be support provided for her and the family and she could return home, and various applications were made for funding, with some assessments to be undertaken.
It was thought that R had benefited from some therapeutic work, and through focused care and skilled responses from that unit. However, in February 2023 the unit said that they were terminating R's place there after a very significant incident where R assaulted a member of staff. This member of staff was so seriously injured that at one point there was some concern as to whether they would recover from the injury, luckily they have done and have not wished to press charges.
R did however have to move, and she was placed in an emergency foster placement in Lincolnshire. There were some positive aspects of that, however, R again self harmed in that placement, and was in hospital for some time, whilst another placement was sought.
In mid March of this year R moved into her current placement and she has remained there.
The family have worked with the local authority and in March 2023 said that they considered they were unable currently to have R return home and felt that her best placement was longer term in a residential setting.
I do not need in this judgment to set out all of the many difficulties that R has. They are set out carefully and thoroughly in the social workers initial statement, the parent's statements, and summarised very well and clearly in the guardian 's analysis. Those difficulties are not in dispute.
The initial social work statement sets out all of the work that is being done with R, and what has been done since she has been in her current placement.
That statement sets out what appear to me to be some inevitable matters whereby the local authority and parents do not entirely agree about some matters, but it is also clear they have managed to work together for some time now and R's needs are currently being met.
The local authority made an application on the 9th June of this year seeking an interim care order with a plan for R to remain in her current placement. They filed a detailed social work statement to accompany that, and of course a threshold document.
I heard the initial application on the 22nd June, and on that date the local authority did not pursue the court making an interim care order, the parents opposed that order being made as not being necessary.
I directed that the local authority filed a more focused threshold document, and that the local authority filed evidence to set out their proposals for Rs care going forwards, and both parents to respond. In advance of that hearing the parents had filed substantial documentation which of course everyone had read.
On the 12th July I heard the matter again, and was told that the parents accepted on the basis of the amended threshold, which set out that R was beyond parental control, that the threshold was met. They however opposed a public law order being made in relation to R.
I therefore directed the local authority to file their final evidence, parents to file statements and the guardian a final analysis.
Findings on threshold .
The parents accept that the threshold has been crossed, and I have an agreed threshold document which appears within the papers. M and F agree that R is beyond parental control.
Options available to the court;
The court effectively has before it 2 options. The overall plan for R to remain in her current placement is agreed, it is only the question of whether she should also be made the subject of a care order that is in dispute.
I have carefully read the whole bundle in this case.
The Law
Re S (A Child) and Re W (A Child) (s 20 Accommodation) [2023] EWCA Civ 1 , the Court of Appeal comprehensively reviewed the use of section 20 accommodation.
Lady Justice King at paragraph 38 summarises the differences between a section 20 agreement, and a care order:
Lady Justice King sets out that of course the reasons for the differences between the two orders are plain to see, in that a care order can only be made once the threshold has been met, and discussed how in the two cases that she was dealing with the threshold was met on the basis that the parents were not in her words 'culpable' in any way.
She reminds herself that the court has to have in mind the no order principle which applies pursuant to Section 1(5).
She goes on to summarise the parameters of section 20:
Lady Justice King goes onto consider Baroness Hale's comments in Williams
& Another v London Borough of Hackney, which has been the leading case on this area for some time. She emphasises the differences in law between s 20 accommodation and public law orders, and the voluntary nature of a local authority providing families with a service, having reminded herself earlier in the judgment of the responsibility of the local authority to provide certain services pursuant to section 17 of the Children Act 1989.
At paragraph 53 she emphasises a common thread through the case law of
In her discussion and analysis of the differences, and factors that might weigh in the analysis of which order is appropriate, Lady Justice King reminds herself of the recent case In the matter of H-W (Children) [2022] UKSC 1451 where the Supreme Court has considered the proportionality of care orders. Lady Justice King sets out the passage from Dame Siobhan Keegan's judgment at para 45:
Lady Justice King then goes on to consider what was set out in the March 2021 Public Law Working Group, which commented in terms of best practice guidance concerning section 20 orders, and how the President had expressed his approval of that. She draws attention to how it was suggested there had been a decline in the appropriate use of section 20 provisions, in circumstances where the use of section 20 may have better met the needs of children and their families. She reminds herself of the Best Practice Guidance at Appendix G. and that everyone must identify the context and purpose for which section 20 is being considered.
Much of the concern recently of course has been in terms of section 20 being used when it is not appropriate, the statute itself is absolutely clear as Lady Justice King sets out on a number of occasions, there is in fact no time limit upon the use of section 20, although it's use must be regularly reviewed.
Lady Justice King goes on to consider the appeal in Re W. The facts are strikingly similar to this matter, but I am mindful of course that each case must be looked at on its own particular facts.
At paragraphs 77, 78, 79 and 80 Lady Justice king makes the following relevant observations:
In considering the application before me, I must have regard to the Article 6 and Article 8 rights of all those concerned under the European Convention of Human Rights.
I shall consider the balance of the arguments for an against an order being made, in the context of the arguments put forward by the local authority and the parents' response to those:
a) The local authority assert that a care order is necessary to ensure R's safety and well-being for the remainder of her childhood. They accept that this position is not a reflection of the engagement or collaboration of the parents. They accept that this is not due to any suggestion that the parents would withdraw their section 20 consent. They do assert however that R will be fast approaching independence, and would have her own choice to revoke her section 20 status to the exclusion of her parents upon reaching 16 years old. The local authority assert in their final statement that as R will be 14 in late 2023, the local authority would therefore have around 18 months to come back to the court should a concern be raised if R was to advise she wanted to discharge herself from foster care at the age of 16. They point out that would be another set of proceedings, which could be destabilising for R. If the order is made now R can be told that she will remain a child in care until she reaches adult hood, and they assert this would provide her with stability and security in terms of her long term plan. It was submitted by the local authority that this argument was really the key reason they seek the care order.
b) The local authority also suggests that R is becoming more curious about her life story and birth family links, and the local authority suggest they need to be alive to the increased possibility of this, and a care order may be of assistance.
c) The local authority also suggest that they would wish to reassure the parents as to how the local authority would exercise parent responsibility, by way of reciting a number of matters. It would be fair to say that all those matters which are suggested could be recited are simply statutory matters that must be in place in any event.
d) The local authority assert that R would continue to receive the local authorities support and resources while she remains a child in care, and would be entitled to access leaving care services in the future.
The parents response to each of these matters is as follows:
a) In relation to the suggestion that an order is likely to be necessary in the future, they assert that does not mean that it is necessary now, and that they see no reason why they cannot discuss and agree such matters at the point that that is necessary. They pointed out that so far R is entirely happy with her situation, and there is no evidence that she will not be content to remain being looked after. Ms Bennyworth on behalf of the mother makes the point that if that were a proper argument, then surely that would then apply to almost every teenager being accommodated pursuant to s20, that a problem may arise in the future.
b) In relation to R becoming more curious about her life story, the parents and the local authority appear to agree in relation to how this will be managed, so this is not a relevant factor.
c) In relation to the issue of local authority trying to reassure the parents as to how they would exercise parental responsibility, the parents have expressed some concerns about how the local authority will work with R if they not only share parental responsibility, but the local authority can exercise that to the exclusion of the parents. The parents suggest that there have been recent incidents which were concerning in relation to R, such as her injuring another child, and R running away, and they were not told by those caring for her, it was R herself who told them. Some discussions they understand have taken place between R and a person working with her which they view as inappropriate. They are also worried there could be disputes in relation to the devices that R is allowed, with the suggestion particularly of R having access to an iPad and a mobile phone concerning them. They do not assert however that would cause the Court to consider a care order necessary, but rather the opposite, that they need to be able to work together in partnership. The clear undercurrent is that the parents are concerned they will be sidelined if such an order is made.
d) In relation to the support and assistance that R would receive pursuant to a care order or pursuant to s20, it appears to be accepted that would be the same.
The guardian 's report sets out a comprehensive analysis of R, the history, and the difficulties in the case. It is apparent but she has taken some time to understand the concerns of both parents in relation to the different options.
The guardian makes the point that with or without the making of a care order, there will be some limit to how far the parents can direct the day-to-day care of R, and they will need to put trust in the professionals looking after her, although they are entitled to updates and raising any key issues.
The guardian spells out the concerns of the parents, that they are dissatisfied with some aspects of R's care and do not think her interests are at the heart of children services decision making. They are concerned they would be excluded from decision making about her, and worried that the assessment and support that R needs may not be completed or there could be extensive delays.
On behalf of R, the guardian accepts that currently whether there is a care order or no order, the services and support available to R now are unlikely to be different. She does however think that the sharing of parental responsibility makes a difference for R's long term planning and future. The guardian suggests that R needs the clear statutory duties of a care order to ensure that children services put in place the best support available. The guardian goes on to suggest that section 20 agreement is usually for assessment purposes, and where children remain in care in the short term.
The guardian suggests that as the risks are dynamic for R, and her home and staff need to be able to respond and manage her day-to-day care, and the home cannot be expected to revert to her parents for every decision about her care. The guardian does point out that as R becomes older, issues such as restricting her access to the internet begins to stray into the realms of deprivation of liberty measures if there is a care order in place for her, and she balances the difficulties for the home in managing that either with or without an order.
Ms McGowan stressed for me the complex dynamics of R and that she has unpredictable needs and behaviours.
The guardian also considers that the prospect of further court involvement for R in her life would be difficult, and may resurrect difficult historical issues for her. The guardian therefore suggests it would not be in R's best interests for care proceedings to be started again in the future for her, and that also added to her view as the necessity of a care order now.
In considering the application for a care order, the welfare of R is my paramount consideration. I have given particular attention to the matters contained in the welfare checklist at s1 (3) of the Children Act 1989 ,
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
(b) their physical, emotional and educational needs ;
(c) the likely effect on them of any change in his circumstances ;
(d) Their age, sex, background and any characteristics of theirs which the court considers relevant ;
(e) any harm which they have suffered or are at risk of suffering ;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting R's needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
Conclusion:
Finally, the court must carry out a proportionality cross check before making a care order. When I consider proportionality in this context, factoring in all of those different matters I have set out, it seems to me the proportionality cross check mitigates heavily against there being a care order in place. The local authority and the guardian can only point to their being a potential need for it in the future. I am satisfied that the far more draconian order could in fact create greater conflict and problems for R. The current situation has enabled her needs to be met over the last year and a half, so the proportionality argument in my view falls clearly to the least interventionist order that is necessary, and that is no order.
Therefore, for all of the reasons above, I dismiss the LA application for a care order.
I make no order as to costs, save for detailed public funding assessment of the publicly funded parties.
END OF JUDGMENT