Children law update: Spring 2024
Michael Jones KC provides an update on recent public law children cases of interest to practitioners.
I am going to kick this update off with request for clarifications. Requests for clarifications should be exactly that, a request to clarify a point in a judgment (it is also entirely proper to correct a factual error). Going beyond this is likely to land you in hot water, as is clear from the recent Court of Appeal judgment in YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71, where the Court cautioned against repeated requests designed to ‘bamboozle’ (great legal term) the Judge. The judgment at first instance resulted in a (very) lengthy clarification process, with the Judge adding further details to her judgment as a result; the appeal was ultimately unsuccessful, however the guidance provided by the Court of Appeal is crystal clear (as per Baker LJ);
‘Finally I return to the vexed issue of requests for clarification. It may be, as Ms Fottrell suggested during the appeal hearing, that it takes time for the messages from reported cases in this Court to get through. But, if I may adopt the words of Sir Nicholas Wall P quoted above, it is high time they did. This case illustrates that the procedure is still being misused. I would therefore draw the following lessons to be learned from this case, in the context of other cases which have involved similar examples of the practice being misused:
(1) A judgment does not need to address every point that has arisen in the case. The court should only be asked to address any omission, ambiguity or deficiency in the reasoning in the judgment if it is material to the decisions that have to be taken in the proceedings. In care proceedings, the decisions are whether the threshold criteria for making orders under s.31(2) are satisfied and, if so, what orders should be made to meet the child's welfare needs.
(2) When making a request for clarification of any perceived omission, ambiguity or deficiency in the reasoning in the judgment, counsel should therefore identify why the clarification is material to the decisions that have to be taken in the proceedings.
(3) Counsel should never use a request for clarification as an opportunity to re-argue the case, reiterate submissions, or invite the judge to reconsider the findings.
(4) Requests for clarification should not be sent in separately by the parties but rather in a single document compiled by one of the advocates. If necessary, there should be an advocates meeting to compile the document. Save in exceptional circumstances, there should never be repeated requests for clarification.
(5) Judges should only respond to requests for clarification that are material to the decisions that have to be taken in the proceedings.
The purpose of the process of clarifications is to head off unnecessary appeals. In a number of recent cases, the misuse of the process has had the opposite effect. I hope that hereafter counsel will confine requests to matters which are material to the proceedings and that judges will deal robustly with requests that exceed what is permissible.’
Males LJ went to provide some further suggestions in terms of approach to this issue by family practitioners:
‘First, I acknowledge that counsel may sometimes be on the horns of a dilemma. If no request for clarification is made on those rare occasions when a judgment is patently inadequate, criticism may be made if a complaint of inadequate reasons is made for the first time on appeal. Nevertheless, this court has warned repeatedly against the inappropriate use of the 'request for clarification' procedure. It was suggested by counsel that the message may not have got through to family law practitioners as yet, but if that is so, it is high time that it did.
Second, a 'request for clarification' should not be used as a means of attempting to water down findings which have been made in the judgment, still less to negotiate with the judge about what needs to be said in order to avoid an appeal. Whether or not that was the intention, it appears to have been the result of the process in the present case. In my judgment the only possible interpretation of what the judge said at [191] to [193] of her judgment is that the father was the perpetrator of non-accidental injury, and that his actions were intentional, albeit the result of a momentary loss of temper rather than any pre-planned malice. Otherwise the judge's references to the father's habit of destroying his remote control in a fit of temper and his comment about wanting to injure the child as her rationale for finding him to be the perpetrator do not make sense. In those circumstances I can see no justification for asking for clarification whether the injuries were deliberately caused.
Third, if a judge proposes to 'clarify' a finding, she should ensure that the clarification clarifies rather than obscures what is said in the judgment. If, which should only happen very rarely, a judge intends to modify or withdraw what is said in the judgment, the clarification should make that explicit and should explain why the judge has changed her mind. Otherwise this court will proceed on the basis that the approved transcript of the judgment contains the judge's findings and that what is said by way of clarification is intended to add to but not to change those findings. In the present case, the judge said nothing in her clarification to indicate that she had changed her mind about what she had said at [191] to [193]. Whatever may be the true interpretation of some aspects of her 'clarification', which I have not found easy to determine, those findings stand.
Fourth, I would suggest that it is always necessary to have firmly in mind that the purpose of a fact finding hearing is limited to determining those facts which are necessary in order to make decisions about a child's future. It is not necessary or even desirable for judgments to make findings about everything which has been in issue in the course of the hearing. Whether clarification is necessary in order for a decision to be made about a child's future should be the touchstone. If clarification is sought, counsel should explain why it is necessary in order for such decisions to be made. That will assist in focusing minds as to whether clarification is really necessary. If no such explanation is advanced, or if the explanation is unconvincing, judges may safely conclude that it is not.’
We have been warned….
Next up, intermediaries (some would say another ‘vexed’ questions facing practitioners; are intermediaries really required in every case in which there is a recommendation for one?). In West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam) Mrs Justice Lieven provided guidance on the use on intermediaries in the Family Court; this was a case involving an application for wasted costs against an intermediary arising out of the adjournment of a 5 day final hearing due to her non-attendance. The wasted costs order was found by her ladyship to have no basis, as the intermediary had an entirely legitimate explanation for non-attendance due to a significant family incident. Despite this, the judgment is used to provide guidance on an area in which there is limited commentary. Her ladyship summarised the legal provisions relevant to the appointment of intermediaries as follows;
‘The position in respect of the appointment, qualification and duties of intermediaries in the family justice system is not clearly set out either in the Family Procedure Rules ("FPR") or in any Practice Direction. FPR r3A.1 defines an intermediary as follows:
"… [I]ntermediary means a person whose function is to –
a. communicate questions put to a witness or party;
b. communicate to any person asking such questions the answers given by the witness or party in reply to them; and
c. explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions…"
There is no further guidance on their appointment or role. However, in the criminal justice system the Criminal Practice Directions 2015 gave detailed consideration to the appointment of intermediaries, including steps to assist defendants in their effective participation in the proceedings.
This background is referred to extensively in R v Thomas (Dean) [2020] EWCA Crim 117 . In that case the Court of Appeal gave detailed consideration to the appointment of intermediaries and how they should be used. Although there are obvious and important differences between Family Court cases and those involving criminal charges, the reasons for the appointment of intermediaries and their function in assisting those with communication difficulties facing important litigation, are essentially the same. Intermediaries are appointed, whether in criminal or family cases, to ensure that the individual in question can participate in the proceedings so that their fair trial rights are protected. Therefore, the guidance of the Court of Appeal in R v Thomas (Dean) is in my view applicable to the consideration of the same issues in the family justice system, albeit the Court will need to have close regard to the nature of the case and the evidence that the individual needs to engage with.
At [36] to [42] the Court of Appeal went through the relevant considerations for the appointment of an intermediary, and the alternative strategies that might be adopted, to ensure that a defendant's ability to properly engage in proceedings and Article 6 rights were protected’
Her ladyship went on to extract the following principles from R v Thomas:
a. It will be "exceptionally rare" for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a "just in case" basis. Thomas [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.
b. The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case, Thomas [36];
c. Intermediaries should only be appointed if there are "compelling" reasons to do so, Thomas [37]. An intermediary should not be appointed simply because the process "would be improved"; R v Cox at [29];
d. In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial, Thomas [37];
e. The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];
f. If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];
g. At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that "evidence is adduced in very shortly phrased questions" and witnesses are asked to give their "answers in short sentences". This was emphasised by the Court of Appeal in R v Rashid (Yahya).’
All these principles apply to the Family Court. Lieven J permitted the appointment of a deaf intermediary in this particular case, but observed that ultimately, any intermediary appointment is a matter for judicial determination;
‘it is the role of the judge to consider whether the appointment of an intermediary is justified. It may often be the case that all the parties support the appointment, because it will make the hearing easier, but that is not the test the judge needs to apply.’
For me, this judgment is welcome as in my own experience, whilst there are cases I have had in which I simply would not have been able to obtain effective instructions without the invaluable assistance of an intermediary, I do take the view that there are some cases in which intermediaries are appointed without this being strictly necessary. For example, in relation to questioning a vulnerable witness, and taking instructions from a vulnerable party, as Lieven J notes ‘Advocates must adapt to the witness, not the other way round". A critical aspect of this is for cross-examination to be in short focused questions without long and complicated preambles and the use of complex language. Equally, it is for the lawyers to explain the process to their clients outside court, in language that they are likely to understand.’ In some cases a client’s communication difficulties will be so heightened that an intermediary will be necessary, in others, they may not.
Re O (Description of Sexual Abuse) [2024] EWCA Civ 126 is a Court of Appeal decision which deals again, with the need to avoid getting caught up and concerned with legal definitions of terms and behaviours, which are not expressly defined within the family jurisdiction. Many of you will recall that the Court of Appeal has previously made clear that family practitioners must not import criminal concepts into family cases (eg criminal definition of attempted murder, rape etc) and this particular case involved the terminology of ‘sexual abuse. In this case, the judge at first instance made a finding that O had been subject to sexual abuse in the form of exposure to inappropriate sexualised materials. The Judge found that;
‘I am satisfied that the parents' actions in exposing [O] to such material amounts to sexual abuse. I do not find that either parent intended such abuse to take place, however they neglected their daughter by failing to ensure that she was safeguarded from their adult sexual activity’
The judgment was appealed on the following grounds;
- The Judge's characterisation of the parents’ conduct in negligently and unintentionally allowing O access to pornography and other sexually explicit material on their phones as 'sexual abuse';
- That no specific reference had been made to the NSPCC Guidance/definition in the hearing or in the draft judgment; it appeared for the first time in the perfected judgment.
Cobb J provided the lead judgment and importantly, observed that the Judge’s factual findings were ‘explicitly targeted towards the 'threshold criteria' in section 31 CA 1989’. His lordship concluded as follows;
‘It can be seen (reference §38 above) that a finding of sexual abuse is a specific finding of a particular type of harm identified within the broader statutory definition of 'harm' and 'ill-treatment'. The use of this categorisation ('sexual abuse') in this case can therefore, in my judgment, be distinguished from those cases where Family Court judges have incautiously used labels such 'rape', 'murder', 'manslaughter' – imported from the criminal jurisdiction – to describe the facts before them.
I accept that there is a risk (which McFarlane LJ discussed albeit in a different context in Re R at [65]) that the label 'sexual abuse', just like any other generic term, may be misunderstood by the lay parties, by the professionals in the case, and/or by those outside of this process who may nonetheless be told of it. If the finding is misunderstood it could itself cause upset and even harm. I also accept that much important context and detail is lost when judges and professionals use generic terms such as 'sexual abuse', or indeed 'physical abuse' or 'emotional abuse', to describe a wide range of conduct, events, actions, and omissions on the part of parents. I recognise the particular risk which arises in this case that 'sexual abuse' may more obviously bring to mind 'contact' sexual abuse rather than 'non-contact' sexual abuse, and in that sense it could be said to be potentially, inadvertently, misleading. But that is not a reason for judges to avoid using the term which statute has exceptionally provided; it is 'exceptional' because (apart from the heading to para.4 of Schedule 2, where it is used as a broad synonym for ill-treatment) it is the only appearance of the term in the text of the CA 1989, and it is, materially, included in this context. Judges in the Family Court are accustomed to making an evaluation of the evidence, and where possible reaching findings on the facts; judges always need to think about whether describing the conduct alleged by reference to a generic label will add to an understanding of the facts. I would counsel against over-analysis. Judges should use descriptions that they consider appropriate to describe their findings and to convey their nature and relative gravity.
The DfE and NSPCC Guidance documents referenced by the Judge undoubtedly contain much within them which is valuable for child protection organisations and associated safeguarding agencies in fulfilling their child welfare duties. I have already commented on the value of the definitions of sexual abuse within each piece of Guidance in helpfully distinguishing between 'contact' and 'non-contact' sexual abuse. There is, as the Judge observed, much in common between the definitions in the two Guidance documents; they both address the involvement of dependent and developmentally immature children and adolescents in sexual activities which they do not fully comprehend. The issues raised by this appeal have served well to underline that 'non-contact' sexual abuse may be no less pernicious than 'contact' sexual abuse. In a world where technology makes ever easier the ability of children and young people to access online pornography and other adult sexual material, there is, perhaps, all the greater need to ensure that our language, and specifically the term 'sexual abuse', reflects the seriousness of the harm to which they are thus exposed.
However, the definition sections of the Guidance documents (referred to in the DfE Guidance as a Glossary) have their limitations too. First, it should be noted that the definitions are of course not intended to be legal definitions; they are not binding on the courts and they should not be construed as if they were legal documents. Secondly, they do not purport to provide an exhaustive list of the wide range of activities which may constitute abuse. Thirdly, and perhaps most importantly, the competing submissions of counsel in this appeal revealed internal inconsistencies in both Guidance documents. The opening sentences of the definition of sexual abuse in each document do not sit comfortably with the illustrations of 'non-contact' abuse which follow (see the passages underlined above at §20 (DfE), and §26 (NSPCC) respectively). By way of illustration, the NSPCC Guidance opens with the generic description of child sexual abuse as occurring: "when a child is forced or persuaded to take part in sexual activities", but this sentence does not correspond at all with the illustration of 'non-contact' sexual abuse which is relevant in this case, namely a parent or carer "not taking proper measures to prevent a child being exposed to sexual activities by others".’
The first ground of appeal was accordingly dismissed, as was the second ground, on the basis that;
‘When responding to the request for clarity from the father, the Judge merely identified one of source materials (the NSPCC Guidance document) which had informed her view. In amplifying her judgment in this way she did not fall into procedural error.’
Again, this Judgment serves as a timely reminder to all of us in the Family jurisdiction, that we must be cautious to avoid becoming overly concerned with wording and terminology relating to specific offences and courses of conduct that are not defined within the applicable legislation within our jurisdiction.
Having dealt with intermediaries earlier in this update, it is only right that I move on to deal with the QLR issue, with this having been addressed by the President in Re Z, (Prohibition On Cross-Examination: No QLR) [2024] EWFC 22). The judgment is a thorough and essential read, arising from a private law case heard by the President involving unrepresented parties (sound familiar?). The judgement does not touch upon the facts of that case but rather seeks to identify the legal provisions relating to the appointment of QLRs and the steps that should be taken in their absence, with the President in his case, having had to pose questions prepared in advance by the litigants, himself. The ‘options’ facing the Court if a QLR is not found within a 28 day period, were identified by the President as follows;
'The principal options facing a court at that stage are likely to be:
a) A further adjournment in the hope that a QLR may be found;
b) An adjournment to allow one or both parties to engage their own advocate;
c) Reviewing the need for the vulnerable party to give oral evidence and be cross-examined. This will include reviewing the need for there to be a fact-finding hearing in the proceedings;
d) Considering any other alternative means of avoiding in person cross-examination between the relevant parties;
e) The court itself taking on the task of asking questions in place of the in person party.
This is not an exhaustive list. The circumstances in each case will differ and, if other options are available, they should be considered. Equally, depending on the local circumstances, and those of the parties, different options will no doubt be chosen on a case-by-case basis. It does not follow that, if no QLR is available, the court is automatically required to conduct the questioning itself. It is important that all possible alternative options are reviewed at that point in the proceedings.’
In terms of questions being put by the Court, the President went on to state the following;
'When considering the options, and whether the court should take on the questioning, the court will take account of PD3AB paragraph 5.3 which states that: 'a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party'. The validity of that statement is unlikely to be controversial in the eyes of judges and magistrates. Indeed, the negative aspects of questioning by the court must have been prominent in the thinking in Parliament when the QLR process was brought into law by the 2021 Act. At a time when it was still comparatively rare for litigants to act in person in Family cases, Roderic Wood J contemplated the option of the judge asking questions on behalf of an unrepresented party and expressed 'a profound sense of unease at the thought' [H v L and R [2006] EWHC 3099 (Fam).
PD3AB, paragraph 5.3 is not, however, black-letter law. The fact that the PD does not include questioning by the court as a satisfactory alternative, does not, as a matter of law, prevent the court undertaking the task if it considers that, in the interests of justice, it must nevertheless do so. When a QLR is appointed by the court the focus is on whether it is 'necessary in the interests of justice' to do so [s 31W(5)]. The need for the court to deal 'justly' with cases is not, of course, confined simply to the need to act in the interests of justice when appointing a QLR; it is a requirement that pervades every step that the court may take throughout any proceedings in order to meet the 'overriding objective' of the FPR 2010, as set out in r 1.1 and 1.2…..
……In the context of a decision on how to proceed in the absence of a QLR, r 1.1(2)(a), (b) and (c) are likely to be of particular relevance. Where there is no other alternative, and oral evidence that engages MFPA 1984, Part 4B is required, the need to ensure that the parties are on an equal footing, with the other party's case being 'put' and the vulnerable witness' evidence being appropriately challenged, coupled with the need to bring the proceedings to an expeditious and fair conclusion in a proportionate manner, are likely to lead a court to conclude that there is no other alternative but for it to ask the necessary questions.
If the court decides to abandon further attempts to appoint a QLR, the previous direction appointing one must be discharged and, as a matter of good practice, the reasons for discharge should be very shortly recorded on the face of the order and/or in a short judgment.’
The President went on to adopt the guidance on questioning, provided by Hayden J in PS v BP [2018] 1987 (Fam);
‘Despite the fact that Parliament has purported to launch a rescue craft (to use Hayden J's phrase) by enacting the DAA 2021, it is regrettable that the unavailability of QLRs will still require resort to these observations when the court has no option but to conduct the questioning itself. I therefore set them out in full with the exception of (v) and (vi) which have been superseded by MFPA 1984, Part 4B. Like Hayden J, I regard these observations as sound advice, rather than more formal guidance which must be followed in every case. The formal guidance given in this judgment is that the court must at all times follow the overarching lodestar of achieving fairness:
(i) Once it becomes clear to the court that it is required to hear a case "put" to a key factual witness where the allegations are serious and intimate and where the witnesses are themselves the accused and accuser, a "Ground Rules Hearing" (GRH) will always be necessary;
(ii) The GRH should, in most cases, be conducted prior to the hearing of the factual dispute;
(iii) Judicial continuity between the GRH and the substantive hearing is to be regarded as essential;
(iv) It must be borne in mind throughout that the accuser bears the burden of establishing the truth of the allegations. The investigative process in the court room, however painful, must ensure fairness to both sides. The Judge must remind himself, at all stages, that this obligation may not be compromised in response to a witnesses' distress;
(v) + (vi) overtaken by MFPA 1984, Part 4B];
(vii) Where the factual conclusions are likely to have an impact on the arrangements for and welfare of a child or children, the court should consider joining the child as a party and securing representation. Where that is achieved, the child's advocate may be best placed to undertake the cross-examination. (see M and F & Ors; Re: S (wardship) (Guidance in cases of stranded spouses) [2011] 1 FLR 319);
(viii) If the court has decided that cross-examination will not be permitted by the accused and there is no other available advocate to undertake it, it should require questions to be reduced to writing. It will assist the process, in most cases, if 'Grounds of Cross-Examination' are identified under specific headings;
(ix) A Judge should never feel constrained to put every question the lay party seeks to ask. In this exercise the Judge will simply have to evaluate relevance and proportionality;
(xii) Cross-examination is inherently dynamic. For it to have forensic rigour the Judge will inevitably have to craft and hone questions that respond to the answers given. The process can never become formulaic;
(xiii) It must always be borne in mind that in the overarching framework of Children Act proceedings, the central philosophy is investigative. Even though fact finding hearings, of the nature contemplated here, have a highly adversarial complexion to them the same principle applies. Thus, it may be perfectly possible, without compromising fairness to either side, for the Judge to conduct the questioning in an open and less adversarial style than that deployed in a conventional cross-examination undertaken by a party's advocate.'
I agree with all that Hayden J says in that passage, and I commend his wise advice in all cases where a court is driven to take on the task of asking questions in these circumstances. The reference made in (i), (ii) and (iii) to a ground rules hearing is of particular importance. FPR, PD3AA, which makes provision for 'vulnerable persons: participation in proceedings and giving evidence' is plainly of relevance and must be adhered to where it applies. FPR, r 3A.2A sets out the assumption that where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, relative of a party, or witness in the proceedings, they are vulnerable. Where the court has decided that a vulnerable party or witness should give evidence, PD3AA, para 5.2 requires that there must be a ground rules hearing prior to any hearing where the evidence is to be heard.’
Again, the importance of a ground rules hearing in every case involving a vulnerable party cannot be emphasised enough. It still surprised me as a junior, how many cases I had been involved in which I came in at the point of a contested hearing and there had not been any proper consideration of ground rules in advance. The President’s judgment is thorough and helpful, however it does not assist with the underlying issue; a notable lack of QLRs nationwide, which I suspect may arise at least partly from the fee structure involved.
And finally one from MacDonald J, in Luton Borough Council v R & Ors [2024] EWFC 52. Broad outline of the facts in this case are that a young girl made allegations of sexual abuse (serious allegations) against family members and the Court approved a care plan of interim removal under and ICO. The local authority then went and placed the child with her mother in an Air BnB (yes, you read that correctly). The Guardian was belatedly notified of this move and no record of placement approval pursuant to r.17 of the Care Planning, Placement and Case Review (England) Regulations 2010, revised interim care plan, safety plan / contract of expectations or confirmation of Service Director approval was made available at that point. We then reach a situation in which the Operations Director from the local authority is called to give evidence…. you can see where this is going. The uncomfortable nature of the oral evidence given is clear from the judgment;
‘The Head of Service stated that approval for the placement of X with her mother pursuant to r.17 and Sch. 3 of the Care Planning, Placement and Case Review (England) Regulations 2010 has been given, although he was less than certain about whether any record of that decision had been created. He further stated that approval pursuant to r.17 had been given on the basis that the local authority now considered the mother as a protective factor. Again, the Head of Service was less than certain about the precise forensic foundations underpinning that conclusion, but stated that there had been a “positive risk assessment” in respect of the mother. He further relied on the fact that X had not sought to abscond whilst she had been in her mother’s care and that X had said she did not want to be away from her family. In these circumstances, the Head of Service told that court that the local authority was now “working towards the safe rehabilitation of X to the care of her family.” Questioned about the evidence of the social worker that the mother was not capable of protecting X, that no assessment of the parents had yet been undertaken, that the court was being invited to make serious findings of sexual abuse and failure to protect, that the court had granted an interim care order an approved a care plan of removal and that there was an ongoing police investigation from which no disclosure had been provided, the Head of Service repeatedly fell back on the bald assertion that “risk assessment is a dynamic process”.’
The judgment analyses Regulation 17 of the Care Planning, Placement and Case Review (England) Regulations 2010 and Schedule 3 of those regulations. MacDonald J concluded as follows;
‘The decision of the Head of Service and the Operations Director to place X in the care of her mother in an Airbnb, also has no forensic foundation in any other evidence. Before deciding to place X in the care of her mother in an Airbnb, r.17 of the Regulation 17 of the Care Planning, Placement and Case Review (England) Regulations 2010 required the local authority to assess the suitability of mother to care for X, including the suitability of the proposed Airbnb accommodation, taking into account the matters set out in Schedule 3 of the Regulations. The matters defined in Schedule 3 include the mother's ability to protect X adequately from harm or danger, including from any person who presents a risk of harm to X, and to ensure that the home environment is safe for X. Whilst the Head of Service asserted that approval for the placement of X with her mother pursuant to r.17 of the Care Planning, Placement and Case Review (England) Regulations 2010 had been given, neither the Head of Service and the Operations Director were able to provide the court with any documentary evidence of this decision having been considered, taken and recorded.
Regulation 17(c) of the of the Care Planning, Placement and Case Review (England) Regulations 2010 further required the local authority to determine whether, in all the circumstances and taking into account the services to be provided by the local authority, the placement would safeguard and promote X's welfare and meet X's needs set out in the care plan. However, once again, neither the Head of Service nor the Operation Director was able to provide the court with an amended interim care plan with respect to X. Indeed, the care plan for X appeared to evolve during the course of the evidence, and in particular the evidence of the Operations Director. As I have noted, as at 5 March 2024 the local authority's position was that it would continue its search for a foster placement for X. At the outset of this hearing, counsel for the local authority did not suggest that position had changed and nor had the other parties been put on notice of any change of position. The social worker appeared completely unaware that the interim care plan had changed and the fact that, on the Operations Director's evidence, she should have been drafting a new care plan. Whilst the Operations Director stated during her evidence that the interim care plan had changed from foster care to placement with the mother as the result of a considered discussion and between her and the Head of Service, I regret that I was left with the distinct impression that the Operations Director had revised the interim care plan during the course of her evidence in order to give the appearance of rationality to a decision making process that had in fact driven by a shortage of resources.’
The Court noted that although it could not direct the local authority alters its care plan, the local authority must afford the highest level of respect for the Court’s welfare and risk evaluation (citing Re T (A Child) [2018] EWCA Civ 650), and observed that;
‘In the foregoing circumstances, it is the expectation of this court that the local authority will accord the highest respect to the risk assessment and welfare assessment of this court and will now implement the decision made by the court in these proceedings consequent on its assessment of risk and welfare on 31 January 2024.’
This judgment acts as a timely reminder of the need to properly risk assess placements AND to ensure that decision making relating to looked after children is made in line with the relevant regulatory provisions.
Michael Jones KC is a barrister at Deans Court Chambers.
