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18 SEP 2015

Gloucestershire County Council v S and Anor [2015] EWFC B149

Gloucestershire County Council v S and Anor [2015] EWFC B149
(Bristol Family Court, HHJ Wildblood QC, 18 September 2015)

In public law children proceedings in which the two children had been accommodated under s 20 for 16 months HHJ Wildblood voiced his criticisms of the local authority and directed that all future hearings should be allocated to him.

Case No: BS15CO1111


Before : HHJ Wildblood QC
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Between :

Gloucestershire County Council

- and -

First Respondent
C1 and C2 by their guardian, Ms Sarah Lees
Second and Third Respondents

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Ms Nicki Cozens for the Local Authority
Ms Melody Brown for the child

Hearing dates: 18th September 2015

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HHJ Wildblood QC

Introduction and use of s20 The Children Act 1989

[1] These are public law proceedings that have been brought by Gloucestershire County Council in relation to two boys aged five and three. The boys were aged three years and fifteen months respectively when they first went into foster care in September 2013 and have been awaiting decisions about their futures since then. The mother, who should be having weekly contact with the children but has not always attended regularly, is in her early 20’s and the different fathers of the children do not take part in the proceedings so far.

[2] This is the third case that I have seen this week where this Local Authority has allowed there to be protracted use of the accommodation of children under section 20 of The Children Act 1989. Without descending into full legal analysis of the statute ‘section 20 accommodation’ arises when a parent agrees that a Local Authority should arrange where a child is to live. With their mother’s agreement, therefore, the two children involved in this case went to live with foster carers in September 2013 and have remained with the same carers for over two years. In its own case summary the Local Authority says: ‘the Local Authority is aware that there has been delay in bringing this matter before the court and entirely accepts this is inappropriate and will attract judicial criticism’. It does.

[3] The one saving feature of this case is that the foster carers, through their dedication to these children, are now offering them a permanent home. However, initially, they were short-term carers for the children and there is still no certainty about where the children will live because, as yet, there is no agreement about the orders that will be made. It appears that the mother may agree to the children remaining with the foster carers. It also appears that the putative fathers may also agree to this. The guardian has proposed that there needs to be further assessment of the foster carers before orders are made (and I deal with that point later).

[4] The upshot is that, for two years, nobody has been able to tell these children where they will be living and that remains the current state of affairs. The only way that certainty can be achieved is by making court orders. For some inexplicable reason the Local Authority chose not to bring the case before the court until now.

[5] Over the past year I have

i) met with this Local Authority on a number of occasions to discuss the issue of the protracted use of s 20 accommodation,

ii) attended conferences in this area at which I have spoken on this issue,

iii) issued newsletters where I have written about it,

iv) placed judgments about it on the Bailii website,

v) spoken to other judges and magistrates in this area all of whom seem to share my opinion and are also trying to combat what is happening and

vi) raised the issue with the Local Family Justice Board.

[6] Where this type of very bad practice arises it is not possible for a judge to undo the past. The only thing that I can do, now, is to publish judgments where this occurs so that the public know what is being done in its name by this Local Authority in a bid to prevent other children experiencing the same procedures. The firm drive of the courts to deal with cases expeditiously in accordance with 32 of The Children Act 1989, as amended, (i.e. keeping cases to no more than a 26 week timetable) is of no benefit to the child if the delay during the overall period of state intervention remains the same because of procedures that are followed before the case is brought before the court.

[7] The effect of this type of procedure is not only that it is patently wrong from the point of view of the welfare of children and in the full spectrum of family difficulties that it creates for foster carers. It also means that limited resources and money are being taken up in a way that expedition would avoid. In the plainest possible language it takes much more time and money for a delayed procedure to be followed than an expeditious one. Inefficiency costs more than efficiency and takes up more time. It also means that the task of sorting out what is best for the children becomes even more complex than it would otherwise be with repeated episodes of crisis management.

[8] For these children not to know for two years where they will be living, who will be caring for them, where they will be going to school, with whom they can make friends and when decisions will be made about them is bound to have a profound effect on their emotional welfare. It is inevitable that the children form attachments to their current carers and do so without knowing whether those attachments will persist.

[9] The guardian says this in her initial assessment: ‘as a consequence of the significant delay to issuing these proceedings the two children have been deprived of having care that could be regarded by them as permanent. It is likely that this has had a significant impact upon the children’s ability to feel secure and this combined with the children’s early experiences had an impact on their personality development and attachment style. This I believe will impact upon their ability to regulate their emotions, feel secure and develop a sense of self-worth. They and any carer are likely to require support with this impact…the children were accommodated under section 20 on 2/9/2013. I am unable to evidence any reason or explanation for the delay in issuing proceedings’.

[10] Over the past two years when these children have sought comfort or reassurance about the future nobody will have been able to tell them what the future holds. In my experience schools do excellent jobs when this type of issue arises but the burden that this type arrangement places on teachers is immense – for instance, how can schools or nurseries protect the emotional welfare of children in these circumstances and what happens when there are discussions or projects at school about families, holidays or future plans?

[11] The foster carers have given these children committed and excellent care. I want to extend my recognition and gratitude for what they have done. The burden on them must also have been immense since they also have to be able to plan their lives and, for two years, they have not known whether to plan as a family with these two children or not.

[12] These proceedings - Today I am dealing with an adjourned case management hearing where the court gives directions in order to get the case ready for a final hearing which, according to section 32 of the amended Children Act 1989, should take place within 26 weeks of 19th August 2015, the date upon which the proceedings were issued. The case had been before the magistrates last week and, quite rightly, they sent the case to me because of their own deprecation of the practices that were revealed. The guardian, who also rightly condemns the delays that have occurred, is to be thanked for identifying that this case should be before me. The mother and her solicitor were told by the magistrates that they need not be before me today and so it is not possible to try to sort the case out in full at this hearing.

[13] The Local Authority became involved because, it says, the mother misused drugs and alcohol, neglected the children, lived in chaos, had a history of volatile relationships, has frail mental health and has engaged in criminal activity. That involvement first began in 2010, although there was a period between October 2010 and June 2012 where it was at a low level. In June 2012 the problems increased and in August 2013 the children went to live with the youngest child’s father before moving into foster care in September 2013. The immediate cause of the move to foster care was bruising that, it is said, was noted on both children when they were living with that father.

[14] The Local Authority then switched into ‘pre proceedings’ mode in September 2014. That means that the Local Authority started to prepare for the issue of proceedings a year after the children had been accommodated. These proceedings were issued eleven months after that. Apparently the youngest child’s putative father was offering himself as a carer for the children but has now withdrawn. The putative father of the eldest child underwent DNA testing only yesterday. The Local Authority says that the mother stopped co-operating with its attempts to assess her in about March 2015 and so no assessments have been carried out.

[15] The Local Authority now proposes that the foster carers should be special guardians for the children and they have been assessed as suitable applicants for such orders. On the 15th January 2015 (i.e. seven months before these proceedings for care orders were issued) the Local Authority wrote a report which concluded:

‘I make a strong recommendation for the further assessment of [the foster carers] and support their application to obtain a special guardianship order for [the two children] as I feel it is in the best interests of the children at this time’.

Seven months later a special guardianship support plan was filed on 11th August 2015. I am told that there is a full special guardianship report (presumably in terms which are compliant with s14A(8) of The Children Act 1989) which recommends that such orders are made in favour of the foster carers. Eight days later the application was made for care orders. There is no application for special guardianship orders yet before me although I will treat such applications as having been made in accordance with section 14A (6) (b).

[16] The next thing that will happen in this case is that the parties will all have to attend before me for an Issues Resolution Hearing (IRH) and I intend to do my best to sort this case out once and for all then, if I can. The guardian has suggested that she may seek an order for a psychological assessment of the attachment of the children to the foster carers; I have made it very plain that, having regard to the necessity test in Section 13 of The Children and Families Act 2014, I think it highly unlikely that I would make an order to that effect since the attachment between the children and the foster carers:

a) is obvious;

b) can be dealt with by evidence from schools, nurseries, health authorities, social workers and the guardian

c) does not raise any evident psychological issues that could not easily be dealt with by the social worker and guardian.

Further, by the time that a psychological report had been produced (e.g. in 3+ months time) and the case has come back to court the children would have been with the foster carers for at least two years and about four months so I cannot begin to imagine that psychological evidence would add anything to what was obvious about the attachment between the foster carers and the children by then.

[17] At the IRH all parties (including the fathers, if they wish to participate) must attend and must file position statements before hand. Arrangements will have to be made by the Local Authority for the foster carers to attend (and I ask for the foster carers’ understanding that I do need them to attend, please, despite the other demands on their time). I need to see the special guardianship final report. I also need to ask for statements, please, from the oldest child’s teacher or head teacher if possible and such informative statements from health professionals as can be given. My intention is that that hearing (which I will have to list over a lunchtime in October because the lists are full until January) will be a proper IRH and not a directions hearing. If I can I will resolve the case then (in accordance with PD12A, Stage 3 of the Guide to Case Management at p1788 of the 2015 Red Book). If any party does not attend orders, including final orders, may be made in their absence. It is imperative that the mother should have decided before that IRH whether she agrees to the orders sought by the foster carers. The foster carers have already had legal advice and, if they need more, I am sure that the Local Authority will want to facilitate that. The Local Authority must ensure that all procedural requirements for the making of a special guardianship order have been fulfilled prior to that hearing.

[18] Any hearings currently listed before the magistrates must be vacated and the case is now to be treated as allocated to me unless otherwise directed by a higher court.

[19] A copy of this judgment must be given to the foster carers and a copy should also be given to the head-teacher of the oldest boy’s school. I have noted what is said about how well he is doing in the school (‘he loves spending time there and has lots of friends’); that, in my view, speaks volumes for the teachers and also for the foster carers and I thank the school for what they have done. A copy should also be sent to the director of social services for this Local Authority.
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