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YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam)

Keehan J’s judgement (89 pages) was delivered at the conclusion of a fact-finding hearing on 3 applications: contact to children in care, discharge of care with the making of a special guardianship order to long-term foster carers and permission to change the children’s surname. It describes what found to be “egregious and long-standing failures” by the local authority and he questioned whether its children’s services were fit for purpose. [226-227] The 3 children were 17, 13 and 11. A fourth child C had died at the age of 14 in 2019.


The children had been in care since 2012. In 2013 there had been a fac-finding which rejected allegations made by the children that they had been directly sexually abused. Work had been recommended on the need for life-story work and therapy to address their belief in what was a false narrative. The children were rejecting contact and it was not taking place. The need for this work was reconsidered and re-iterated in 2014 and 2016. Although some work was done, the recommended work was not done. The children sought to use their foster carers' surname. The DFJ who heard the case in 2016 was very concerned about the foster carers refusal to take on board the findings made about the parents and suggested that the children might need to move. Nothing was done by the local authority in response.

In 2019 C became extremely ill and Director of Children's Services exercised powers under s33 Children Act 1989 to authorise the withdrawal of life-support and C died before the mother attended the hospital.

The judgement sets out a series of failings by the local authority in the discharge of its functions towards the children and their family and litigation failures.

The judge considered and applied Re C (Children) [2016] EWCA 374, Re E (A Child) [2018] EWCA Civ 550, [2019] 1 WLR 594; and  Re H (A Child) (Parents Responsibility: Vaccination) [2020] EWCA Civ 664 and concluded that

In Child C's case, therefore, the profound life and death decision to consent to the withdrawal of life support ought to have been the subject of an application to the High Court either by BCH or by the local authority. It was wrong and an inappropriate use of its powers under s.33 of the 1989 Act for the local authority to have exercised its powers to consent to the withdrawal of Child C's life support. [133]

There was no dispute about the appropriateness of the withdrawal of life support. This issue was the process. The local authority had at the time no policy in place on the issue as recommended by the Court of Appeal in Re C (above).

The judge also found that senior managers expected the social worker (who had previously advised against an SGO) to write an assessment recommending an SGO be made to the foster carers despite the fact that it was not what she professionally recommended, and the report was then approved and filed in support the making of an order by the court. [178-180], in furtherance of its "LAC reduction policy".

The significance of the finding arose from the judge's observation [92-93] that

    92. The essential features of an application for a special guardianship order and which the court must scrutinise with care before making the order are:

i) a thorough, comprehensive and evidence-based assessment of the children and of the prospective special guardians; and

ii) a comprehensive Special Guardianship Support Plan which sets out the services and support to be provided to the children and the prospective special guardians: see the Public Law Working Group's Best Practice Guidance in respect of Special Guardianship Orders.

93. A key element of the support plan is the arrangements for contact between the children and their mother, father and family and the support the local authority will provide to arrange and support contact: see also s.14B of the 1989 Act.

The judge was critical of the way that the local authority ignored the advice of an expert appointed within the proceedings and the recommendations and concerns of the DFJ who accepted the views of the expert. He describes the local authority approach as "disgraceful" and "very shocking". He makes it clear that in its care planning and discharge of its duties towards children and families that there is an expectation that an authority should respond positively to such advice from an expert and a senior circuit judge. Keehan J says the approach of the local authority revealed "a mindset which has ultimately caused them considerable, possibly irreparable, emotional and psychological harm" [189].

The judge criticised the fact that the local authority failed to provide proper disclosure of relevant records before the hearing began. 2000 pages were disclosed once the hearing started. He said that the authority was wrong:

(a) to have no policy in place on disclosure of documents,

(b) to leave disclosure decisions to social workers; and

(c) to have not allowed (until a late stage) the legal services team access to the electronic social work records,

He concluded that "The children have been utterly failed by this local authority" and that the local authority wrongly excluded the mother from decision making, in particular in relation to Child C.

It was agreed that the SGO would not be made and that the application for a care order would be withdrawn, that consideration of  direct contact would be adjourned while a psychologist would be instructed to assess and work with the children, mother and the foster carers (who had acknowledged their own failings). The mother consented to the change of surnames for the children to that of the foster carer, and the court made the order thereby remedying a breach of the duty under s33(7) Children Act 1989.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case summary, please see BAILII