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Family Law

The leading authority on all aspects of family law

11 MAR 2015

Re S (A Child: No 2) [2015] EWFC 20

Re S (A Child: No 2) [2015] EWFC 20
(Family Court, Sir James Munby, the President of the Family Division, 6 March 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2016] 1 FLR 222]

Public law children – Procedure – Best practice – Failure to comply with court order – Failures in communication

The full judgment is available below.


The President gave judgment following his decision in Re S (A Child: No 1) [2015] EWFC 19 highlighting the instances of poor practice in the course of care proceedings.

Following the decision in Re S (A Child: No 1) [2015] EWFC 19 the judge provided a further judgment highlighting the deficiencies and instances of poor practice in the course of the proceedings.

Despite the fact that the father’s solicitors had informed the local authority of their intention to appeal, the child was matched with prospective adopters and placed with them. Letters were drafted informing the parents of this development but were not sent. Attempts were made to contact the parents by telephone but the social worker was unable to speak to them. A note was placed on the file saying letters could not be hand delivered due to the father’s ongoing difficulties with the local authority.

When it became clear that the father was pursuing an appeal the adopters were purposely not informed. Although the decision was probably taken with the best of intentions complete frankness was required from the outset.

Furthermore, the local authority failed to comply with the order requiring them to file an addendum to the parenting assessment.

Neutral Citation Number: [2015] EWFC 20
Case No: UD13C00173

IN THE FAMILY COURT
Sitting at NEWCASTLE UPON TYNE

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 6 March 2015

Before :

SIR JAMES MUNBY
PRESIDENT OF THE FAMILY DIVISION

- - - - - - - - - - - - - - - - - - - - -

In the Matter of S (A Child) (No 2)

Between :

NORTHUMBERLAND COUNTY COUNCIL
Applicant
- and -
(1)M
(2)F
(3)S (by his children’s guardian)
Respondents

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Ms Claire Middleton (instructed by Northumberland County Council) for the applicant (local authority)
Ms Pauline Moulder (instructed by Yarwood and Stubley) for the first respondent (the mother)
Mr Justin Gray (instructed by Pearson Caulfield LDP) for the second respondent (the father)
Mr Thomas Finch (instructed by      ) for the third respondent (the child)

Hearing dates: 17-21 November 2014

- - - - - - - - - - - - - - - - - - - - -


Judgment

Sir James Munby, President of the Family Division
:

[1] This arises out of the retrial of an application by Northumberland County Council, issued on 29 September 2013, for care and placement orders in relation to a little boy, S, who was born on 3 March 2013. The back ground to the case, the reasons why there was a retrial and the reasons why the case has taken so long to come to a conclusion are set out in a judgment given by Her Honour Judge Hudson on 29 August 2014 which I shall take as read: Re S (Child) [2014] EWFC B154.

[2] The hearing began before me on 17 November 2014 and finished on 21 November 2014 when I reserved my decision, which I announced on 25 November 2014. Subsequently, on 6 March 2015, I handed down my judgment explaining why I had decided to make the orders sought by the local authority: Re S (A Child) [2015] EWFC xx.

[3] The proceedings have, unhappily, brought to light various instances of poor practice which need to be identified with a view to ensuring, so far as possible, that they do not recur.

The appeal

[4] In her judgment of 29 August 2014, Her Honour Judge Hudson set out in some detail the chronology of events in relation to the appeal: Re S (Child) [2014] EWFC B154, paras 3-22. There are two aspects of this lamentable story which merit more detailed examination.

[5] As Judge Hudson recorded, the father’s solicitors wrote to the local authority on 24 April 2014, informing the local authority of the father’s intention to appeal and requesting confirmation that it would not place S for adoption prior to the conclusion of the appeal. There was no reply to that letter.

[6] On 23 May 2014 the social worker was informed by the permanence worker that a potential match had been found for S. The permanence worker wanted to check that there was no pending appeal before proceeding. The social worker discussed the matter with a principal lawyer, P, in the local authority’s legal department:

“Queried whether there was any pending appeal from either parent in light of potential match for S with adopters. P checked files and confirmed that there was nothing indicating any such appeal had been lodged. As the period had now passed and with nothing on file to indicate any appeal was in process it was agreed we would proceed with match.”

[7] Given that green light, matters proceeded swiftly. There was a meeting with potential adopters on 2 June 2004. They were approved as adopters for S by the adoption panel on 27 June 2014 and by the agency decision maker on 30 June 2014. They were introduced to S the next day, 1 July 2014. Ten days later, on 11 July 2014, he was placed permanently with them.

[8] On 30 June 2014 the local authority prepared letters to the father and the mother:“to inform you that the Agency Decision Maker has agreed with the recommendation of the Adoption Panel … to match your child … with prospective adopters.”The letters were not sent. Unsuccessful attempts were made by the social worker on 2 July 2014 to contact the father and the mother by telephone. “I did not leave a message in case this was not an up to date contact no.” She discussed the matter with her team manager and the permanence worker later the same day.

[9] There are various accounts of what happened. The first is in the social work chronology prepared for the hearing by the social worker: “Discussed not being able to contact parents to advise of adoption match. SW advised” – in her oral evidence to me she explained that this was to be read as meaning “SW was advised” – “that in light of the sensitivity of this letter, this could not be posted and given the uncertainty as to how parents may react following their presentation at the final court hearing, it was not deemed appropriate that the SW should visit parents with this letter and instead the letter would be placed on S’s adoption file and handed to parents at a later day.”The contemporaneous file note prepared by the social worker in relation to her attempt to contact the father says:“Due to fathers on going difficulties with Children’s Services and given fathers behaviours towards the social worker in final hearing, it was felt it was not appropriate to hand deliver letter advising of match for S. Instead, the letter will be placed onto S’s adoption file and handed to father at a later date when it is felt safe to do so.”Of note, there is no similar entry on the corresponding file note relating to the mother.

[10] What Judge Hudson was told (Re S (Child) [2014] EWFC B154, para 15) was this:

“Unfortunately, F was not informed of the move. I was told that the social worker telephoned him and left messages asking him to contact her, but he did not return her call. A letter to F informing him of the proposed placement was not hand delivered because of what the local authority described as ‘safety concerns for professionals’ and it was considered too sensitive to post. In these circumstances, the letter was still with the local authority at the time of an email exchange between the solicitors on 6th August 2014.”

In fact, the parents did not see the letters until they were produced during the hearing before me.

[11] In her judgment (Re S (Child) [2014] EWFC B154, para 77) Judge Hudson made some highly pertinent comments with which I entirely agree. Referring to the situation in which the parents, the adopters and S now found themselves, she said:

“This difficult and anxious situation could have been avoided. Firstly, the four month delay in lodging the appeal notice was, in my judgment, unacceptable. In my experience, appeal notices are lodged, if needs be, by the proposed appellant acting in person, while applications for Legal Aid are pursued and where reasons (or a transcript of judgment) are awaited. This has the obvious good sense that the parties and the court are aware of the appeal and can manage the situation accordingly. Secondly, communication between the respective solicitors could easily have avoided this situation. There should have been further correspondence from F’s solicitor to the local authority, confirming that the appeal was still being pursued, bearing in mind the time that had elapsed since the decision and long after the time for lodging an appeal had expired. Where the local authority had been notified of a proposed appeal, it should have acknowledged receipt of the letter informing them of that proposed appeal and acted upon it. Most importantly, before proceeding to place a child for adoption in such circumstances, it is in my judgment incumbent on the local authority to check the position in relation to a proposed appeal of which it has been notified. They should have notified F’s solicitor of the proposed placement in advance. I very much regret these failures, with their inevitable impact on the prospective adopters (who bear no responsibility whatsoever for the unfortunate situation in which S is now placed). I do not under estimate the potential impact on S.”

[12] The moral is obvious. As Judge Hudson pointed out, all this could have been avoided if only the solicitors had ‘chased’ the local authority for an answer to their letter of 24 April 2014 and, more especially, if the local authority’s legal department had checked the position with the father’s solicitors before giving their advice on 23 May 2014.

The appeal – further problems

[13] Matters went from bad to worse.

[14] Notice of the father’s appeal reached the Family Court and the local authority on 29 July 2014. By then, of course, S had already been placed. The same day there was a discussion between the social worker, her team manager and the permanence team manager: “Agreed not to inform Adopters until we know outcome.” On 31 July 2014 there was a statutory LAC visit to S and the adopters: “Adopters remain positive about their future with S and spoke of making a formal application to adopt at the earliest opportunity.” They were told nothing about the appeal. On 7 August 2014 there was a LAC Review: “the carers were discussing their intention to formally adopt S at the 10 week stage.” Again, they were told nothing about the appeal. On 28 August 2014 there was a statutory LAC visit: “Adopters plan to lodge application asap.” Again, they were told nothing about the appeal, which had by then been heard by Judge Hudson. Judgment, allowing the father’s appeal, was given on 29 August 2014. There was a discussion the same day between the social worker, her team manager, the permanence team manager, H, and a lawyer from the local authority’s legal department:“H did not feel adopters needed to be told today as they were currently away on holiday and agreed to plan a way forward after professionals meeting next week. Agreed adopters would need a lot of support.”The professionals meeting was held on 2 September 2014: “Agreed delay in telling adopters until their return from annual leave.” The adopters were finally told what had happened when visited by the social worker and permanence worker on 9 September 2014: “They were extremely distraught but stated that they would remain fully committed to S.”

[15] I am not surprised. No doubt the initial decision not to tell the adopters what was going on was taken with the best of motives, even if the thinking which underlay it was naïve and fraught with problems. But the all too foreseeable consequence was that the local authority was gradually enmeshed in a series of dealings with the adopters which passed imperceptibly from non-disclosure to something more serious. Complete frankness was surely called for from the outset.

The local authority’s response to Judge Hudson’s directions

[16] In her judgment (Re S (Child) [2014] EWFC B154, para 54), Judge Hudson had drawn attention to what Ryder LJ said in Re W (A Child) [2013] EWCA Civ 1227, [2014] 2 FLR 431, para 100, as to need for the local authority to “set out in its evidence the range of services that are available in respect of each placement option and under each of the orders which the court can impose to best meet the harm and/or likelihood of harm identified by the court.” In the order she subsequently made on 3 September 2014 Judge Hudson directed that the addendum parenting assessment of the father which the local authority was to serve by 26 September 2014 was:

“to consider the following:

(a) What practical support the LA identifies as being needed to assist F in support of his wish to care for the child;

(b) What practical support the LA can provide from within its own resources or any external supports that could be provided;

(c) Whether F is able to accept and utilise the support and resources identified/available to enable him to provide good enough care for the child;

(d) The role the PGM and her partner can provide F in caring for the child.”

[17] The addendum parenting assessment is dated 26 September 2014. Addressing what Judge Hudson had required, it contains the profoundly unsatisfactory information that “Northumberland would need to have discussions with Newcastle …” and again that “There would need to be discussion with Newcastle …” This was not a proper compliance with Judge Hudson’s very clear order. The local authority was required to address its mind to the “practical support … needed to assist the father” and the “practical support [it] can provide”. You do not identify what is needed by saying that you are going to discuss it with someone.

[18] In the event this unhappy development did not impact adversely upon my ability to deal with the case fairly and justly, let alone upon the outcome, because, as it happened, nothing turned at the end of the day upon the issue of local authority support. But the local authority was not to know that, nor is it any excuse for its failure to comply with the court’s order.

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