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Family Law

The leading authority on all aspects of family law

07 JUL 2015

Re TM & TJ (Children: Care Orders) [2015] EWHC B83

Re TM & TJ (Children: Care Orders) [2015] EWHC B83
IN THE BRISTOL FAMILY COURT
Date: 29/06/2015

Before :

HIS HONOUR JUDGE WILDBLOOD QC

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Between :

South Gloucestershire Council
Applicant

- and -

L (mother)
First Respondent
-and-
R (father)
Second Respondent
-and-
TM and TJ (children) by their guardian
Third and Fourth Respondents

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Claire Rowsell for the Local Authority
Claire Cox for the mother Catherine Hullis for the father
Lydia Berry for the children

Hearing dates: 30th June 2015

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JUDGMENT


HHJ Wildblood QC :

[1] On the 15th January 2015 the South Gloucestershire Council (‘the Local Authority’) applied for care orders in relation to two young children. One is a girl who is now nearly 2 ½ years old. The other is a boy who is nearly 18 months old. Both children have been living with foster carers since September 2014 by arrangement made under section 20 of The Children Act 1989. The mother of both children is still a teenager. The father of both children, who is separated from the mother, is in his early 20’s. Both parents play an active role in the proceedings.

[2] The Local Authority brought these proceedings on the basis of its contentions that the mother had a very unsettled upbringing and, as mother, led a chaotic and disordered lifestyle in which her children were neglected and under-stimulated. It says that the relationship between the mother and the father was volatile and that the father also came from an unsettled background. Since the children were placed with foster carers the Local Authority says that the mother has only co-operated to a limited extent with professionals who have been trying to work with the family and that she has missed many contact sessions.

[3] Statutory provision now requires that cases of this type should be completed within 26 weeks from the date of issue, unless the court considers that an extension beyond 26 weeks is ‘necessary to enable the court to resolve the proceedings justly’ (section 32 of The Children Act 1989 as amended). The 26 week period for this case expires on 16th July 2015. On 30th January 2015 an order was made by the Bristol Magistrates which provided, amongst other things, for this case to be concluded at a final hearing that was to take place on the 7th, 8th and 10th July 2015. Thus the order provided for the case to be heard within the 26 week period. The making of that order so long before the final hearing meant that everyone had plenty of warning of the final hearing date.

[4] Plainly this was a case that should have been resolved within the 26 week period prescribed by statute. It is not a complex case. The issues were clearly defined. The Local Authority had been involved with the parents for years before the case started and so knew them well; the father and mother were involved with children’s services as children; there was a heightened involvement between the Local Authority and the mother following the birth of the first child. Thus, the authority had plenty of time to make up its mind about what orders it would seek once proceedings were issued. The children involved in this case are young and, given their ages, it is imperative that delay is avoided. The boy was an 8 month old baby when he first went to live with foster carers and the girl was then 17 months old.

[5] Plainly, for this case to be dealt with properly there had to be assessments of the parents in order to decide whether either of the parents could care for the children. Assessing two parents in a case such as this is not complex but does require organisation and management.

[6] Further, in this case, an order was made for a psychological assessment to be completed in relation to the mother and children and the resultant report was dated, and released to the parties on, 8th June 2015; thus there was psychological assistance for those carrying out the other assessments even though I cannot see why the report of a psychologist was ordered. If such a report were to be necessary there should have been a report that was obtained in the very lengthy pre-proceedings stage.

[7] It was on the 12th March 2015 that the order was made for that psychological assessment. The application for it was made on the joint instruction of the parties. In this area far too many psychological reports are being ordered when they do not meet the test laid down in section 13(6) of The Children and Families Act 2014 that such reports should only be ordered when they are ‘necessary to assist the court to resolve the proceedings justly’. Unnecessary reports waste public money, cause delay and add nothing to the overall quality of the evidence in a case. The report, which I have read, contains little of value that could not have been found elsewhere within the evidence, if the evidence had been properly prepared; it suggests that the mother does not suffer from significant mental health difficulties but has ‘chronic and long standing problems with emotional dysregulation’. The psychologist did not assess the father. However incorrectly ordered that report might have been, its availability should have made the task of the Local Authority even more straightforward.

[8] What is more, if the family courts are to crack down on the ordering of expert reports, as they must in this area, it means that there is no scope at all for failure by the Local Authority in its responsibilities to assess parents. There is no slack in the system at all and should not be any, either.

[9] On 12th March 2015 the Bristol Magistrates ordered that the case should be made ready for a preliminary which is called an ‘Issues Resolution Hearing’ (‘an IRH’). The intention of that kind of hearing is to identify the issues that remain between the parties and see whether they are capable of being resolved without the need for a full final hearing. It is not just a ‘directions hearing’ because Practice Direction 12A of The Family Procedure Rules 2010 (which is well known to family lawyers) provides that, at the IRH:

• The court identifies the key issues (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;

• The court considers whether the IRH can be used as a final hearing.

• The court resolves or narrows the issues by hearing evidence.

• The court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing.

• The court gives final case management directions.

[10] If, by the time of the IRH, the Local Authority has not filed adequate evidence, it means that the whole purpose of the IRH is negated. Thus the magistrates ordered that, by the time of the IRH, the Local Authority should have filed its final evidence including its assessment of the parents. The Local Authority had been ordered to file its final evidence (including all assessments) by 15th June 2015, the parents had been ordered to file position statements by 22nd June 2015 and the guardian had been ordered to file a position statement by 23rd June 2015. There was to be a meeting of advocates on the 16th June but that had to be abandoned because the Local Authority’s final evidence had not been filed. The court was notified that there were delays. Some final evidence was filed by the Local Authority by 22nd June 2015 although the mother’s solicitor did not receive any of the final evidence until the morning of 25th June 2015.

[11] On 25th June 2015 this case was referred to me by the Magistrates. The parties and their legal teams had all been at court since 1 p.m. that day. I knew nothing of the case before it came in front of me late that afternoon. There were the following reasons for that referral:

i) All parties accepted that the Local Authority had not filed adequate final evidence. The Local Authority itself presented its case on the basis that the assessments that it had conducted were inadequate and could not be relied upon.

ii) The care plan proposed that the children should go to live with the father in the east of England under a supervision order to a Local Authority in that part of the country. There was no input from that other Local Authority and there was no indication of how that authority might support the father if the children did go there. That authority was first notified of the suggestion that there should be supervision orders in its favour (and also of the hearing on 25th June 2015) on 19th June 2015. Before the email that was sent on the 19th June, that authority had no knowledge of the case at all. It is not surprising therefore that that authority did not consider that it could participate in the hearing on 25th June; it has never seen the papers in this case.

iii) There was no adequate evidence of the arrangements that the father would make if he were to care for the children there. In particular, the father’s plan, if he does move to the east of the country, is to be assisted by his aunt in the care of the children. There is no evidence from her; there is no more than a ‘viability assessment of the aunt’ that was filed on 17th April 2015. Although the agency social worker who dealt with the case before leaving is thought to have spoken to the aunt before the care plans were filed, there is no record of any such discussion.

iv) There had been no adequate assessment of the mother. She opposes the suggestion that the children should live with the father and wishes to care for them herself. There was an assessment of the mother that was carried out in November 2014 but this was not a parenting assessment and was carried out when the children were already in foster care. There had been a previous assessment of her in January 2014; this was a parenting assessment and was completed at a time when the children were still with her; however, that assessment was underway at the time of the birth of the second child and expressly was not an assessment of the mother’s ability to care for two children. There simply was no parenting assessment of the mother within the proceedings and there was no assessment of her ability, as a parent, to care for two children. That is despite these proceedings having been running now for very nearly six months, with the children in foster care.

v) Because the Local Authority had not put forward any adequate evidence or proposals it meant that the parents did not know what case they had to meet. Even now I do not have any idea what the Local Authority recommends for these children.

vi) The root cause of the problem lay in the fact that the previous social worker, who was an agency worker who had been employed in January 2015, had been charged with the responsibility of writing assessments of the parents, had said that she had done so and then left her temporary employment with the Local Authority without fulfilling that responsibility properly, I am told by the Local Authority. The new social worker had only been involved in the case for three weeks prior to the IRH on 25th June and, quite understandably, did not have the knowledge upon which to write fresh assessments.

vii) Given the omissions in the Local Authority assessments I was told that it would take 14 weeks for the current social worker to complete assessments, given her case load and summer leave. The alternative, I was told, was that an independent social worker could be instructed to report by the 14th August. The result now is that the Local Authority will have to pay from public money for an independent social worker to be employed to do the job that a social worker, employed by the authority, should have done.

viii) Given the shortage of time, the final hearing therefore could not be sustained at the beginning of July and another date would have to be found.

ix) The work of the guardian was materially impaired. How could she advance recommendations when she did not know what the Local Authority proposed.

[12] Thus, the effect of this is that the case cannot be heard in July. It would be impossible to do justice to these children and to make a decision that reflected their paramount welfare in a hearing then. The case now has to be adjourned until there can be an IRH in September – that is twelve months after the children were first placed in foster care. The final hearing will be even later than that.

[13] So concerned was I about what had occurred that I asked for a written explanation from the director of social services about the state of the case. He has written a very full and helpful letter. It makes the following particular points:

i) the Local Authority extends a full and unreserved apology for what has occurred. He says: ‘The case management has clearly not been of the quality that this Local authority expects and does not meet the standards required that we have set ourselves locally. More importantly, the Local authority is sorry for the delay which will now inevitably occur for these children in terms of ensuring their permanence’.

ii) He says:

‘This situation has largely come about because of significant staffing issues within South Gloucestershire Council’s social care service. The North locality team has been affected particularly badly by high levels of staff turnover at both practitioner and management levels, which in turn has led to the use of relatively high levels of agency staff. It is evident that this situation has impacted on this case with a lack of consistency and direction, as well as a loss of knowledge and oversight each time a social worker or manager has left the Department. The Local authority’s legal team has equally been through a period of significant turnover and change recently, which has again led to inconsistency in relation to legal oversight and direction’.

iii) Before leaving South Gloucestershire council, the agency social worker agreed to complete the final evidence for this case after her final working day for the Council. This arrangement was approved by the Service Manager because it was believed that the agency worker’s recent knowledge, as well as the assessment information, would ensure consistency in the crucial legal proceedings period. Unfortunately, the agency worker then went on to file her final Statement late and did not complete the care plans at all, leaving the Local authority in a very difficult position. The Statement did not contain an updated parenting assessment of the mother, or detail of the parenting assessment of the father, which I understand had been agreed by the parties previously. It also became clear that despite the agency worker recommending the plan of the children moving to live with their father, she had not in fact contacted the Council [in the east of the country] to discuss provision of support under a Supervision order’.

iv) The Local Authority is keen to learn lessons from this experience and will fund an independent social worker to report. There will also be an internal review. There will be communication between this authority and the authority for which the agency social worker is working, informing that other authority of the difficulties that have arisen from the agency worker’s practices in this case.

[14] I understand the difficulties that the Local Authority faces and criticisms from the bench do little to repair the problems. Indeed criticism can simply add to the recruitment difficulties that Local Authorities face. From the time of my first speech as Designated Family Judge in this area I have stressed that there are four alliterative concepts that I wish to drive forward –

i) a collaborative approach amongst the many professions and institutions involved in the family justice system;

ii) Proper communication between those involved in that system;

iii) a recognition of the need for changes in practice and

iv) a commitment to the people who really matter – the children, family members and professionals who are obliged to turn to the family court system when there are family and personal difficulties that cannot be resolved consensually.

15. But I would like to make these points:

i) If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.

ii) Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.

iii) Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.

iv) If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.

[16] In this court area there has been a recent and considerable increase in the number of cases that are not meeting the 26 week statutory deadline. Of 181 public law cases there are 49 cases that are now ‘off track’. That means about 27% of our cases are exceeding the 26 week deadline. This has got to stop. Many people have worked extremely hard to improve upon the performance of this area and we are not prepared to see that slide away from us now. This type of poor case performance is unnecessary and is damaging to the system as a whole.

[17] There are reasons why some cases may need to exceed the 26 week deadline. For instance there are cases involving complex issues of fact (e.g. where there is an allegation of a serious offence having been committed), cases which involve large and complex family dynamics and cases involving complex medical issues. This is not such a case. There are far too many cases like this one where the issues are straightforward and where delay is manifestly harmful to the children concerned. The only reason why this case has been so delayed is inefficiency.

[18] If three days of court time are lost in this way it may well not be possible to fill those days with other work where this sort of thing happens so close to a final hearing. Not only are adjournments plainly contrary to the welfare of young children, they also cost a lot of public money and mean that very valuable court time is being lost. There is now immense pressure for every hour of court time to be used to its very fullest advantage and if one case is neglectfully prepared, as this one has been, it means that other cases and, other children and other parties suffer. It also means that public money is being used to fund the inefficiency of those people who do not engage in the system properly. It is perhaps commonplace but, nevertheless I do observe that the Local Authority that contends that the mother has not ‘co-operated with professionals’ has, itself shown a distinct and at least commensurate lack of co-operation with the court.

[19] I am therefore adjourning this case to an IRH before me in September and will list a final hearing, again before me, as soon as possible afterwards. I will also try to call the case in for review once the report of the independent social worker has been obtained. I will release this judgment on Bailii. I know that it will be picked up at least by the local press and I consider that people in South Gloucestershire need to know how their Local Authority is functioning.

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