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A-Z v Birmingham City Council [2013] EWHC 3462 (Fam)

Applications by father to discharge care orders in respect of his six children. Applications dismissed.

This was an application by a father to discharge care orders in respect of six of his children.  A seventh child of the parents had died of starvation, an event for which the father bore no responsibility but the children's mother was serving a sentence of imprisonment as a result.

Holman J dealt with the application for the eldest five children first.  Their ages ranged from 9 to 17.  All five were placed together in the same foster placement where they had lived continuously since December 2009.  They were settled in their placement, had all expressed a relative lack of interest in their father, and indeed they had not seen him for some 18 months by the time of the hearing.  Neither the local authority nor the children's guardian supported the father's application.  Consequently the application was dismissed summarily as it was deemed to have no prospect of success.

The sixth child who was aged two was placed separately from his siblings.  He was also subject to a placement order as well as a care order.  The family with whom he had placed had begun proceedings to adopt him.  The application to discharge the care order in respect of this child, which was in any event not the correct application as he was subject to a placement order, was also dismissed.  He had lived with this family for two years and there was every indication that they would be approved as suitable to adopt him.  Even if reconstrued as an application to discharge the placement order, clearly there would be no welfare grounds to entertain this application which Holman J described as "frankly no less hopeless than that in relation to the five elder children".

Summary by Sally Gore, barrister, 14 Gray's Inn Square

Claim No: BM13C07025
Neutral Citation Number: [2013] EWHC 3462 (Fam)


Birmingham District Registry
33 Bull Street
B4 6DS
Wednesday, 16th October 2013


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The Applicant appeared in person
MR KERRIGAN appeared on behalf of the Respondent
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Transcript by Cater Walsh Transcription
1st Floor, Paddington House
New Road, Kidderminster DY10 1AL
Tel: 01562 60921
(Official Court Reporters to the Court)
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Wednesday, 16th October 2013

1. The background to the present application is, I am sure, a very complex one, and also it is overshadowed by the supreme tragedy that one of the children of this father and mother died from starvation.  The father bears no responsibility for that tragedy, but the mother is currently serving a sentence of imprisonment for it.

2. On 10 July 2013 the father, Mr I A-Z, issued a formal application in form C100 for the discharge of care orders that were made in 2011 in relation to five of his children, namely: A, who is now aged 17; L, who is now aged 16; Z, who is now aged 15; M, who is now aged 13; and A2, who is now aged 9. 

3. The father also seeks, in form, the discharge of a care order that was made in 2012 in relation to a much younger child, A3, who was born in June 2011, and is, accordingly, now aged just over 2.  I will refer to the five elder children collectively as "the elder children", and I will refer, separately, to A3.

4. In relation to the five elder children, I have for this hearing evidence, first, from the relevant team manager, Clarence Crosdale, in a statement dated 13 August 2013; and second, by a report dated yesterday, 15 October 2013, by the children's guardian, Sian Heffey.

5. From a combination of those two sources of evidence it is quite clear that the five elder children have lived continuously since December 2009, that is, for  nearly four years, together in a single foster care placement with Mr and Mrs W.  It is absolutely clear, albeit generalising, from the evidence that all five of the children are, in their different and diverse ways, thriving in that placement.  They are happy there.

6. All five children have each expressed, with varying degrees of force, a relative lack of interest in their father.  They have certainly all made clear that they do not wish to leave the foster placement in which they are currently living, and that they would be resistant to their respective care orders being discharged.

7. It is a fact that none of the children have actually seen their father now for about eighteen months, since mid April 2012.  Further, it is a fact, although I do not know the details behind it, that other children of the father, who had been living with him, are not now currently living with him.

8. When those facts and circumstances, which I have briefly identified and listed, are put together, it is absolutely patent that there is not the slightest prospect or possibility of the care orders in relation to any of the five elder children now being discharged. 

9. On an application of this kind the court has the power, and, indeed, the duty, summarily to dismiss it if, after appropriate enquiry, it is clear that it has no prospect of success, and its pursuit may, indeed, be unsettling for one or more of the children concerned, and, therefore, detrimental to their welfare.

10. By an order made on paper consideration by Her Honour Judge Deeley, dated 25 July 2013, she required the local authority to file and serve a statement, namely, the statement in due course of Clarence Crosdale, to which I have referred, and required the children's guardian, whom she re-appointed, to file and serve "an initial assessment".  That degree of enquiry has now been undertaken.

11. Quite clearly, the guardian views the case completely independently from the local authority; but, quite clearly, the report and message from each of the sources, namely, the team manager, Clarence Crosdale, and, independently, the guardian, is entirely to the same effect.  It is, of course, very hard indeed for the father, Mr A-Z, whom I am confident loves all his children, and would dearly like all or some of them to resume living with him.   But the reality is, as I have said, that the present application, which he issued on 10 July 2013, insofar as it relates to the five elder children, is utterly hopeless for the reasons I have briefly given, and I will, accordingly, summarily dismiss it.

12. The situation in regard to the youngest child, A3, is rather different.  In the first place, he is not living with the five elder children, but separately from them.  Secondly, he is, of course, considerably younger.  But the most significant difference between A3 and the five elder children is that in his case the order that was actually made last year was not a care order, but a placement order.

13. The position in relation to A3 is that as soon as he was discharged from hospital following his birth in June 2011, he began living with a certain family.  He has lived continuously with them between then and now; namely, over two years.  Those people have now initiated proceedings for his formal adoption.

14. There are, of course, certain statutory processes which have to be followed by the local authority, and they are currently assessing the suitability of this particular family as adopters of A3.  For that reason it was not technically correct of Clarence Crosdale to say, in the last sentence of her statement dated 13 August 2013, in relation to A3, that "This became his adoptive placement in January 2013";  nor is it technically correct for the guardian to have referred, in the last phrase of paragraph 5.2, at the end of her report dated 15 October 2013, to "A3 being placed with an adoptive family".

15. Technically speaking, A3 is still a foster child, fostered with that family, but he is a child whose legal status is subject to a placement rather than a care order.  There is not the least indication that after the due procedures have been followed, the family with whom he is living will not, in due course, be assessed and approved as entirely suitable to adopt him.  Technically, however, the placement is not yet an "adoptive" one.  However, all that is highly technical.

16. The reality of the situation is that A3, no less than the five elder children, and arguably more so, is currently very securely placed in a very settled placement.  He has known no other than the family with whom he is living.  There is not the slightest possibility that he might now, or in the near future, be uprooted and removed from that family to return to live with his father. 

17. So, technically, the application that the father makes in relation to A3 for "discharge care order" is not strictly a correct one since there is currently no "care order" in force in relation to A3.  But even if his application, insofar as it relates to A3, was re-formulated, or re-construed, as an application to set aside the placement order, it is, frankly, no less hopeless than that in relation to the five elder children.

18. As I said at the beginning of this judgment, I do have sympathy, and, indeed, respect for the father.  He has represented himself today with clarity, cogency and moderation.  I have no reason to doubt his love for all his children.  He must live daily under the shadow of the deceased child, whom I mentioned.  But I must, in circumstances such as this, be robust and direct.  As his application has absolutely no prospect of success I must, as I do, summarily dismiss it.