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Re MM (A Child) (Long Term Fostering / Placement with Family Members) (Wishes and Feelings) [2013] EWHC 2697 (Fam)

Welfare stage of care proceedings; disagreement of guardian with local authority as to appropriate plan; criticism of guardian in relation to her discussions with the child, which court found had resulted in emotional harm.

Final welfare stage of care proceedings in relation to a child aged 7 years old, who was described as traumatised at the time that he was received into care, and who had remained completely opposed to any form of contact with his mother. It had been intended that the plans for him should be finalised in July 2013, but at that stage the care plan was inchoate, as assessments of his great aunt and uncle were ongoing and initial indications were positive.

The subsequent special guardianship order assessment was described by the judge as one of the most favourable she had ever encountered. Notwithstanding that, the local authority and child's guardian continued to favour a plan of long term fostering. The judge had adjourned the hearing for the local authority to re-evaluate its proposals.

By the time of the current hearing, the local authority, mother, and the great aunt and uncle were all agreed that the child should move to live with them, although the exact form of order was still left to be decided. The court considered that the precise form of order could be decided later in the year; the priority was for the child to know where he was to be living. 

The child's guardian continued to submit that the child should remain subject to interim care orders, and sought further assessment in order to gather a full picture of the child's needs. She expressed concern about the loss the child would experience in moving from foster care and the possibility that he would be caused further trauma.

The court held that it would be wholly contrary to the child's welfare needs to pause a day longer in approving the local authority's plan. Criticism is made of the guardian for "failing to assimilate, take account of and respond to the growing body of positive material about the family members" [para 35].

The court went onto criticise the way in which the child's wishes and feelings had been investigated and relied upon by the Guardian:

"[I]n my view it was quite wrong of her to tell MM that she and the local authority were agreed about the long term plan for him and seek to elicit his view in that context [ para 53].

"I believe it will have resulted in some emotional harm which is, I know, a harsh conclusion to draw in relation to the work of a guardian" [para 54].

As a result, the judge had decided to see the child herself to explain what was happening.

Summary by Jacqui Thomas, barrister, 37 Park Square Chambers

Neutral Citation Number: [2013] EWHC 2697 (Fam)
Case No: FC12C00009


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/08/2013

Before :

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Re MM (a child) (long term fostering / placement with family members) (wishes and feelings)

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Alistair Perkins for the London Borough of Sutton
Sylvester McIlwain for KK, the mother
Tom Dudley for the McKs, the maternal great aunt and uncle
Debbie Jacobs for the Children's Guardian, Karen Gorbutt


Hearing dates: 21st and 22nd August 2013
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I direct that copies of this version as handed down may be treated as authentic.

This judgment consists of 55 paragraphs.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mrs Justice Pauffley:

1. This has been the final part of care proceedings about a boy who is 7 years and four months old. In February this year at the end of a lengthy fact finding hearing, involving 6 children born to three mothers I commented that for MM and his younger brother JB, the local authority's plans were inchoate. In relation to MM, there was an ongoing assessment of MM's great aunt and uncle, TMcK and JMcK. Initial indications were said to be encouraging.

2. In February, Ms Gorbutt, the Children's Guardian was opposed to any permanency plan for MM which would have had the effect of taking him away from his current foster mother where he was making quite excellent progress. If he were to stay within his short term foster family, the indications at the February hearing, were that it would be on the basis of long term fostering under a care order. Understandably enough, given MM's age, the local authority was disinclined to pursue any such solution, for all of the usual reasons. If at all possible, as a matter of general principle, any young child who is not to return home should be provided with an alternative, legally secure family which will endure for the remainder of his minority and beyond.

3. At the end of the February hearing, I observed that for MM, I believed there to be no viable alternative to continued separation from his mother. All the signs were that when he was received into care, MM was traumatised. He has been completely opposed to any form of contact with her. There is no alternative to planning for MM on the basis that he cannot return to live with KK. 

The July hearing at Reading
4. During the course of what had been intended to be the final 'welfare stage' of the care process, at Reading on 17th, 18th and 19th July, there were a number of developments which made it quite impossible to conclude the proceedings for MM. The McKs, for whatever reason, had been largely left on the periphery rather than encouraged to participate in the hearing, notwithstanding one of the most favourable special guardianship assessments I have ever encountered. Moreover, it was only on the day the hearing was due to begin that the local authority arranged for them to take legal advice.

5. There had been suggestions, resulting from telephone conversations that the McKs would not want to oppose the local authority and the guardian who, at that time, were united in promoting a care plan for MM of long term fostering throughout the remainder of his minority in the home of his foster mother, SL.

6. On the second day, 18th July, Mrs McK attended with Counsel, Mr Dudley. The independent author of the special guardianship report, Tina Ruffles, had been due to attend but was caught in traffic. It emerged during the course of 17th / 18th July that very significant parts of her report had not reached the local authority nor any other party because of an administrative error.

7.  During the course of the hearing at Reading, I described in some detail the advantages, as I saw them, of MM being enabled to move permanently in to the home of Mr and Mrs McK. During the afternoon of 18th July, there was a professionals' meeting attended by the allocated social worker, Mr Rowat, his team manager, Joanne Rabbitte, Tina Ruffles and Karen Gorbutt.

8. The proceedings for MM were adjourned to these two days in August to allow for the local authority to re-evaluate its proposals, to enable the McKs to participate in a series of meetings at which they would be able to fully discuss MM's emotional and other needs and for consideration to be given to the most appropriate orders in MM's welfare interests, if he were to move to the McKs' home.

Developments in the last month
9. When the hearing begun yesterday morning, it was immediately obvious that in the time available, the McKs had not been able to fully formulate their aspirations in terms of the order they would seek so as to secure MM's placement with them. As Mrs McK observed, her "head was spinning." During recent days they had moved from wishing to be special guardians, to supporting the local authority's plan leading to adoption and then, if I'm not mistaken, reverting to special guardianship because of the availability of support plans under such an order. They had received advice from their Solicitor, had considered the options with the local authority as well as with the guardian; and they did not know in which direction they should be heading.

This hearing
10. At the outset of this hearing, it seemed to me that the priority for MM was to arrive at a conclusion as to where and with whom he will be living for the rest of his childhood. He has been in interim care since his removal from his mother's home on 1st February 2012. Moreover, since MM has become aware that thought is being given to him moving to live with his great aunt, uncle and their children, he has made clear his bemusement that the process is taking so long.

11. Since the hearing at Reading, as part of its assessment exercise, the local authority has arranged for MM to have additional, unsupervised and staying contact at the McK's home. So as to fulfil my responsibility to him, it was apparent that I should not delay further in making the all important decision as to whether he should be placed with the McKs. The time for consideration as to the framework of orders, so as to govern that placement, can well wait until the autumn, when court time will be available for resolution of any dispute.

Parties' positions
12. By the end of the court day yesterday, there was a unification of positions between the local authority, the mother and the McKs. All three invite me to sanction a revised care plan which would involve MM in moving to the home of the McKs at the beginning of half term in October, moving to his new school where one of the McK's sons is a pupil at the end of the half term holiday and, significantly, informing MM that these are the sure and certain decisions which have been made so that he can begin to adjust to them.

The mother's stance
13. Whereas it had been the mother's stated hope that MM would be able to return to live with her, it became very obvious when she gave her evidence that she recognises the realities. In response to one of Mr McIlwain's first questions KK said that although she would have loved to see him come back to her, she "(does) understand that cannot happen." For the future, "it would all depend on him, how he feels and how his emotional needs develop."

14. KK's support for the McKs could not be more fulsome. She described how she loved them both, how they had been "more of a Mum and Dad" to her than her own parents and that TMcK is "an amazing, wonderful person who when she puts her mind to something, gets on and does it." KK said of Mrs McK that she is "a very strong woman who always ensures everyone else is put first and before herself." KK has "no doubts"; she knows the McKs would be "wonderful" for MM; and she has "no hesitation in saying he should move to live with them."

15. I was moved by the mother's ability to concentrate upon MM's needs and to fully support the McKs. I was in no doubt as to her sincerity. There was no sense in which I considered KK was only paying 'lip service' to the notion that MM should live with the McKs. She meant what she said and deserves full credit for that. I believe her when she said she would never do anything to undermine his placement, would make careful plans so as to avoid bumping in to him accidentally and would do all she could to avoid MM becoming emotionally distressed.

16. KK at this hearing, maybe because she's been in the presence of a much loved aunt and uncle, has been able to show another, very child focussed, side of herself. She was even able to contemplate MM being adopted by the McKs but expressed strong resistance to him being known other than as K or M, her own or his existing surname. Perhaps the mother is desperate for there to be some outward sign of MM's identity and biological roots – I know not.

The guardian's position
17. Ms Gorbutt does not agree with the general 'direction of travel' and suggests that instead of making final care orders on the basis of the local authority's revised care plan I should enable there to be further assessment by an organisation called 'Family Futures' because, as she said in evidence, "we do not have a full picture" of MM's needs.

18. Ms Gorbutt has "real concerns as to the trauma (MM) has suffered." She "cannot think of another case in which there has not been an expert assessment of need" before moving to permanency; and for her, "it's all about minimising trauma." It is the "risk of distress" which troubles Ms Gorbutt and MM, in her view, will "experience a move from his current carer as a loss."

19. Ms Gorbutt also said that she does "not say 'No' to the McKs because there has been such a positive assessment" but she is "concerned about the impact upon MM and therefore finds it difficult to say 'Yes' without information that he would not be adversely affected." Ms Gorbutt is "anxious about upsetting and distressing him further" and believes there "should have been an assessment before."

20. For Ms Gorbutt, "it is a balance and of finding the least harmful option" and then she gave a series of reasons supportive, I could only infer, of a solution which would leave MM with his current foster mother. Ms Gorbutt mentioned that he is the only boy, that he sees his current school as a constant, he would be separated from a key figure (SL), there would be grief and loss, he would be going into a family dynamic where he would have three new siblings, and he has said how he enjoys being the only boy in SL's home. Ms Gorbutt ended that part of her evidence by saying that in her view, "MM wants to stay where he is." Later, she added that it is her "worry that he will feel he is not wanted anymore by his sisters or his school."

The local authority's care plan
21. The local authority's plan is, as was explained by Mr Rowat, the allocated social worker, to involve 'Family Futures' so as to support the proposal for achieving permanence with the McKs and not to "feed in to any further assessment of their capacity to parent." He also said he was "comfortable about the prospect of placing MM with the McKs and that his therapeutic needs would be assessed as something separate." Mr Rowat believes MM will flourish in the McK's home, that the disruption to him in leaving his foster mother would be purposeful and that he would be able to manage that "with support."

22. Mr Rowat, in my view, is a thoughtful, measured and reflective professional whose evidence impressed me greatly. He was also able to tell me that SL is "in support of MM moving to live with the McKs." She had had "initial misgivings because she did not know if they were 'biting off more than they could chew'" but is encouraged by how well MM is adapting to increased contact with the McKs and his display of settled behaviour after visits to their home.

Taking steps into the unknown
23. I ponder, as I turn to my decision, that it is seldom if ever the case that every conceivable element of the care plan for a child caught up in care proceedings has been established by detailed evaluation and assessment. In the vast majority of cases, it is necessary to take steps into the unknown on the basis of a sufficiency of evidence as to the prospects for success.

The evidential foundation for decision making
24. Here the very careful work undertaken by Miss Ruffles reveals a couple and indeed a family which shows every sign of being spectacularly successful in terms of meeting MM's welfare needs. The McKs have been in a stable relationship for 25 years, present as happy together, have no secrets, clearly know one another strengths and weaknesses. They complement one another. Mrs McK is more vocal, easily reveals her emotions and is quick to respond. Mr McK is more laid back, consistent and calmer.

25. They are also the deservedly proud parents of three children. Their daughter, L, gave evidence at the fact finding hearing in February when she was only 16 years old. I described her as an expressive and articulate witness who gave clear, cogent and totally convincing evidence. She was consistent, clear, forthright and demonstrated considerable courage in agreeing to participate as she did. In short L provided an illuminating insight into what successful parents the McK are.

26. Ms Ruffles commented that the signs are positive, given MM's familiarity and relationship with the McK's. He is unlikely, in her view, to experience grief or loss at leaving his foster carer, especially if he is able to have some ongoing contact with her, especially initially.

27. When Ms Ruffles observed contact, MM was clearly relaxed; and when his cousin J, the McK's youngest son, spoke about him coming to live with them, MM smiled and said 'yes'. SL had told Ms Ruffles how surprised she had been when MM had met with Mr McK, saying that he was only the second male with whom MM had been relaxed. According to SL, it was immediately clear that "the bond was really strong", MM clearly looked up to his uncle and, in her view, he would be a good role model for him.

28. Mr and Mrs McK had raised with Ms Ruffles as to how they would support MM in the future, how to deal with any disclosures as well as how to protect other children with whom he will come into contact. It was Ms Ruffles' recommendation that the McKs should have the opportunity of meeting with a specialist organisation which specialises in that area.

29. In fact, and in addition to the work planned at 'Family Futures' the McKs have had a recent meeting with Dr Fitzpatrick, a community paediatrician who works with the local authority's 'Looked After' team. As the minute of their discussion reveals, they asked a number of pertinent questions. It was a two-way process and shows, as Mr Rowat said, that they are not putting themselves forward out of a sense of duty. They have given a great deal of thoughtful consideration to what they have been told.

Decision on the key question
30. Should I then pause, as Ms Gorbutt suggests, before giving my approval to the local authority's plan? Should I embark upon yet another assessment, this time of MM's emotional needs? I have decided and by a wide margin that it would be wholly contrary to MM's welfare needs to pause a day longer in approving the local authority's plan. He should be told, as soon as possible, that it is settled. He should know he will be going to live with the McKs, that he will be moving from but not losing contact with SL and that all the adults are working together to make it happen for him by the October half term.

31. I cannot agree with Ms Gorbutt's suggestions for a further delay and observe that throughout her three reports she has made it abundantly plain that in her view MM should stay where he is long term.

32. In February this year, Ms Gorbutt said MM needed the stability and security that remaining in his current placement would provide. Her opinion was that the then care plan of adoption was a 'high risk strategy' given his age and background, and that there was the potential for rejection and high risk of placement breakdown. She was also "very concerned as to how MM will respond when he learns that his forever family may not be SL's."

33. In her report for the July hearing, Ms Gorbutt made very little mention of the McKs although she did refer to them as having been positively assessed as special guardians for MM. There was a bald statement that MM's care plan was then for long term fostering and a reference to Amanda Gillard's report in which she said that "on balance, it may be in MM's interests to remaining where he is so that he has a sense of security at the earliest opportunity."

34. Most recently, in her report of 21st August, Ms Gorbutt related that she had been "unable to consider any permanency decision making other than (MM) remaining in his current placement under a long term fostering arrangement." She concludes her report by suggesting that 'Family Futures' may come to a different decision to that which the local authority puts forward as being in MM's interests. It would "therefore seem there is a risk that a difference in professional opinion may be taken as to the hierarchy of MM's needs which may impact adversely on the current care plan, timescales and thereby also, (said Ms Gorbutt), on his emotional welfare." Her final sentence is in these terms – " It will be a matter for the court to consider whether it is in MM's welfare interests to determine his permanency and conclude these proceedings at this stage or to await the outcome of the pending 'Family Futures' assessment.

35. It seems to me to be clear beyond peradventure that Ms Gorbutt has failed to assimilate, take account of and respond to the growing body of positive material about the McKs starting with the first report of Ms Ruffles in late May and culminating in the immensely impressive interaction the McKs have had with the local authority since the middle of last month.

36. I strongly suspect that the suggestion of further assessment is advanced because, in truth, Ms Gorbutt has such difficulty in accepting what everyone else involved agrees would be best for MM. She hopes that support for her own position might become available from Family Futures. Ms Gorbutt drew my attention to her suggestion, made as long ago as July 2012 at a hearing before Parker J that MM should be assessed by an expert. He was then just over 6 years old. No suggestion was made at the February 2013 hearing, either by or on behalf of Ms Gorbutt, for any such assessment. I would have refused it in any case because I take the view that, ordinarily, the allocated social worker is the best person to advise a judge about the emotional needs of such a young child.

37. Mr and Mrs McK have shown themselves to be, as Mr Rowat commented, both "emotionally intelligent and able to communicate a sense of resilience." They are MM's close family members who, very obviously, are utterly committed to him. They will stick by him through thick and thin. Mrs McK will take no nonsense from anyone. She will be a formidable advocate for him, will stand up for what she believes to be in his best interests and against all comers – much in the same way as she did for her daughter L when she was overwhelmed by medical difficulties.

38. There would be no benefit at all in some further assessment by 'Family Futures' or any other organisation of MM's needs, as the prelude to him moving to live with the McKs. They are the needs of any child who has lived through the distressing, abusive and extremely frightening experiences which are already well understood by both the social workers and the McKs. The depth and the detail may be shrouded in mystery still but there can be no real question but that MM was abused.

39. The February judgment relates my finding – that inescapably, "events have happened in MM's life which cause him to have a profound and highly adverse reaction to mention of his mother's name. He has not been protected from sexual harm. Almost certainly, he was exposed to highly sexual activities when JP was looking after him."

40. I also remind myself, as I did at the February hearing, that with effect from 31st January 2013, the Family Procedure Rules as amended by the Family Procedure (Amendment) (No 5) Rules 2012 provide that active case management includes "controlling the use of expert evidence." By rule 25.1, as amended, "Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings. As the President recently observed in Re TG (A child) [2013] EWCA Civ 5 the new test is intended to be significantly more stringent that the old. The text of what is 'necessary' sets a hurdle which is on any view significantly higher than the old test of what is 'reasonably required.'

41. Finally as to this, I would reiterate some of what I said at Reading in July echoing as I did, the evidence given by Rachel Chesworth in February. MM is very young – only 6 ¾ in February; not yet 7 years and a half. Planning for his future should involve creating arrangements which are legally secure, designed to be permanent and enduring.

42. Allowing him to remain in a long term foster home, however good, however much his foster mother has helped him through some traumatic times would have been an inadequate response to his overwhelming needs. He requires the same basic structure as any child of his age who cannot return to his parents. He must sense that he belongs, that he will be staying in that home throughout his childhood, that the people who are looking after him are utterly committed to and will stand by him. He deserves not to be, for any longer than necessary, a 'child in care' with regular 'Looked After' reviews, consultations with and visits from social workers throughout the whole of his childhood.

43. SL has been a wonderful temporary refuge for MM. She has helped him through some turbulent times. He trusts, loves and is attached to her. But she has been able to recognise how he should be with his family, the McKs. Her stance, as recently as 10th June this year was that she was able to continue caring for MM, indicating that she would like to be considered as a long term foster carer for him if he is not placed with his family or for adoption. SL for entirely understandable reasons is not able to offer anything approaching the advantages which are available within the McK family home.

44. I was very impressed by Mrs McK's view of the future potential for continuing occasional meetings between MM and his foster mother. Mrs McK does not agree with the local authority's plan which envisages no further face to face contact two months after MM goes to live in their home. Mrs McK said she saw no need for him to break off contact with SL when she has been a part of his life for so long. She believes it should be allowed to "naturally fall away." Mrs McK said, and I entirely agree, that she is not sure MM needs to be completely separated from SL.

45. Not for the first time, I was struck by how articulately, sensibly and intuitively Mrs McK responded to questions about MM's emotional needs.

Investigation by the guardian of MM's 'wishes and feelings'
46. Finally, I am impelled to comment upon the way in which MM's 'wishes and feelings' have been investigated and relied upon by Ms Gorbutt, in her decision making exercise.

47. Again I remind myself that in February 2013 MM was 6 and ¾. In her report for that hearing, Ms Gorbutt related her fear that "discussions with MM would necessarily trigger distressing thoughts and memories." She went on to say that "the prospect of discussing the local authority's care plan (at that stage it was adoption by strangers) has … been a challenging one; it is clear that if his wishes and feelings were to be canvassed they would be to remain with his foster mother, SL."

48. The report continues, "With the indication from SL that she had reconsidered her decision as to long term foster care, I felt able to ask MM what I should tell the judge as to where he would want to live if it was not with his mother. MM replied that he 'wants to live here with SL.'"

49. More recently, on 15th July 2013, Ms Gorbutt had another meeting with MM.  Her report relates that MM "again confirmed his wish to live permanently with SL; this time however (Ms Gorbutt) was able to let him know that the local authority and (she) were finally agreed on this, albeit his Judge would be making the final decision."

50. Part of the context for that discussion was the 'direct work undertaken by Mr Rowat with MM on 4th June when MM had said he wanted to go to live with the McKs and how much he enjoyed having contact with his cousins, their three children. At his age, it might be said without any surprise at all that MM is ambivalent.

51. A number of observations arise from the way in which Ms Gorbutt has discussed his future with MM. First, that the 'wishes and feelings' of children of the age of MM, whilst of some passing interest, cannot be seen as determinative in the hugely important decisions about their long term futures.

52. At that age, they simply do not possess the maturity, the insight, the perspective, or the capacity to weigh the risks and advantages of any given situation. They cannot be the arbiter of their own best interests. Their requirement is for decisions to be made about them by responsible adults possessed of the relevant information and trusted to accord priority to their overall welfare needs. It is one thing to respond positively to suggestions from MM as to whether he would like fish fingers for tea and quite another to take account of and assent to his choice about where he should live.

53. Finally as to this, I am profoundly concerned by the content of Ms Gorbutt's conversation with MM last month. In my view, it was quite wrong of her to tell MM that she and the local authority were agreed about the long term plan for him and seek to elicit his view in that context. The impression which MM must have taken from that discussion was that, in truth, no other options were under consideration as to his living arrangements. It must have seemed to him like 'a done deal' because the most important authority figures in his life had agreed what should happen.

54. The scope for him to have become extremely confused given recent developments has been immense. I believe it will have resulted in some emotional harm which is, I know, a harsh conclusion to draw in relation to the work of a guardian. However, I consider there is really no alternative to that conclusion in the situation I have described.

55. In that context I have considered whether I should see MM myself to explain to him what is happening and to answer any questions he may have of me. To her credit, Ms Gorbutt believes that would be a very good idea.