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Re C-D (A Child) [2020] EWCA Civ 501

This is Mother’s appeal against the making of a Care Order and an order pursuant to s.91(14) of the Children Act 1989 in relation to a child. B. Mother sought for the proceedings to be remitted with the mother’s sister, Maternal Aunt, being given the opportunity to have legal advice and representation to enable her to have effective access to justice so that the option of B living with her pursuant to a SGO could be properly assessed.

Brief Facts:

- There had been longstanding concerns about the parents and their care of B. This was because of a number of issues including domestic violence; the father's criminality culminating in a significant term of imprisonment in 2011; and the mother's mental health and generally neglectful care of B.

- Proceedings began with the making of an Interim Care Order and Recovery Order. B was found in October 2018 after a nationwide search.

- A raft of evidence was obtained for the proceedings. This included a psychiatric report of the mother; an ISW's assessment of the mother; an initial viability assessment of Maternal Aunt as a carer for B; a special guardianship assessment of Maternal Aunt by the ISW; and a psychological assessment of B. The detail of the assessments, as far as they relate to understanding the appeal, appear at paragraphs (25)-(55) of the judgment.

- The final hearing became a split hearing. The Maternal Aunt was given permission to and did attend the hearing. The care plan was for B to live with foster carers or in a residential home under the auspices of a care order. Mother accepted on day one of the hearing that B could not return to her care. Mother and B's father sought for her to be placed with Maternal Aunt under a SGO. The Guardian supported the LA position.

- On 23 August 2019 the trial judge gave her substantive decision, finding the s.31 criteria were established and approving the care plan in terms of a reduction in contact between B and his parents. She also accepted the, effectively unanimous, professional evidence that a SGO in favour of Maternal Aunt would not meet B's needs and would place him at risk of further unacceptable harm. The only "realistic option" which the judge considered would meet B's future needs was a care order.

- However, the judge decided that before the proceedings were finally determined further assessments should be undertaken of Maternal Aunt to see whether B might be able to live with her as a kinship foster carer. The LA agreed to amend its care plan and to instruct an ISW to undertake a kinship foster assessment.

- A case management hearing took place on 4th October 2019. The judge was informed that a foster placement for B, which could be either short or long term, had been identified. B had been in a residential placement since early June 2019 following the breakdown of his then foster placement. The judge refused the mother's application for Maternal Aunt to be joined as a party. She also informed the parties that she proposed, at the next hearing, to consider whether to make an order under s.91(14).

- At the adjourned hearing on 28th October 2019 the judge made a final care order. She decided that it was "not in B's welfare interests for further investigations as to his placement and contact arrangements to be made outside the looked-after children process". The judge also made an order under s.91(14) in respect of both the mother and the father until 18th October 2021.

Grounds of Appeal
Mother appealed.
The grounds of appeal, were as follows:

(1) that the arrangements for contact between B and his mother were approved without the court hearing evidence or submissions;

(2) that the judge was wrong to make a care order in the absence of any or any sufficient analysis of the available options;

(3) that the judge wrongly equated foster care with a family member to foster care with a non-family member resulting in no consideration of proportionality;

(4) that the final care order was made prior to the completion of Maternal Aunt's assessment as a foster carer and without any support plans;

(5) that appropriate provision was not made to ensure that Maternal Aunt had effective access to justice;

(6) that the judge failed to consider the welfare checklist in full and omitted other relevant factors; and

(7) in respect of the s.91(14) order, that the court was wrong to make this order.

Held:
Ground (1):
That the arrangements for contact between B and his mother were approved without the court hearing evidence or submissions is not sustainable. The judge approved the arrangements for contact in the care plan in her August 2019 judgment which followed the substantive hearing in July. There is no suggestion that any party sought to adduce any further evidence at this hearing and they were plainly able to make submissions as they considered appropriate. In any event, the judge had more than sufficient evidence to determine this issue.

Ground (5):
Reliance was placed by Mother upon the trial judge having commented that Maternal Aunt 'requires representation'. Mother also submitted that this should have been achieved by the court directing that an application for an SGO be made and/or by joining Maternal Aunt as a party, as required and set out in In re P-S at [52]-[56]. This argument was rejected on the following basis:

- The circumstances of the present case are very different from those in In re P-S. In that case both the LA and the Guardian proposed that the children should live with their respective grandparents following positive special guardianship assessments. The failure to make them parties in those circumstances meant that that "did not have effective access to justice" such that the "procedure was unfair".

- The Court of Appeal noted In re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889, In re S (A Child) (Interim Care Order: Residential Assessment) (Note) [2015] 1 WLR 925 and also what Black LJ said in Re B (Paternal Grandmother: Joinder as Party) [2012] 2 FLR 1358 about the relevant factors when the court is deciding whether to join a party to care proceedings including, at [48], "plainly the prospect of success of the application that is proposed".

- Despite the trial judge's initial comment in August 2019, an application for joinder of Maternal Aunt was made and rightly rejected.

- As to the suggestion that the Court could invite or suggest that an application for an SGO to be made, unless clear that someone was intending to make such an application, the Appeal Court found it difficult to see how the court could direct the making of such an application. Although no application was made by Maternal Aunt, the judge could have raised this herself. In either event, the court would have had to consider the prospects of success of any application for an SGO and the court's clear response would have been to decline even to invite Maternal Aunt to make any application and to refuse to join her as a party. As to the former, an application for an SGO may not be made without permission, something which would have clearly been refused. As to the latter, there was no need for Maternal Aunt to be joined as a party to enable the judge properly and fairly to determine whether making a special guardianship order was a viable, realistic option for B's future care. The judge had ample evidence and was able fully to consider the issue.

- The trial judge's determination in her August 2019 judgment was, therefore, not undermined by the absence of MA as a party.

Grounds (2), (3), (4) and (6): These are taken together and collectively challenge the judge's decision to make a care order. Mother submitted that the court was not in a position properly to determine the care proceedings because there was no information available as to the support services which might be available to Maternal Aunt and/or the work which might take place with the mother and Maternal Aunt to support B living with her. This meant, in particular, that the option of an SGO was rejected without the court having any analysis of how the concerns identified about this option might be ameliorated or addressed.

The Court of Appeal found that:

- the judge was able to reach a properly informed conclusion;

- the ISW and the Guardian had both provided the court with a very careful analysis of the available care options including that of an SGO in favour of Maternal Aunt;

- there was no gap in the evidence;

- specifically in relation to ground 2, the court had comprehensive assessments which provided a full analysis of the available care options. The judge was plainly entitled to accept that evidence and decide that an SGO in favour of MA was not a realistic care option;

- As to ground (3), the judge did not equate foster care with a family member to foster care with a non-family member. The judge expressly referred to the "many advantages" of B living with Maternal Aunt. There is no basis for contending that her order was not proportionate;

- In relation to ground 4, the final care order was made prior to the completion of the Maternal Aunt's assessment. The Court of Appeal refers to the case of In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, in which Lord Nicholls made a number of observations, at [92]-[100], directed towards the question of "how far courts should go in attempting to resolve … uncertainties before making a care order and passing responsibility to the local authority", at [92]. He considered, at [97], that there was a "somewhat imprecise line" with, on one side, cases in which uncertainties should be resolved, in particular if they needed to be resolved "before the court can decide whether it is in the best interests of the child to make a care order at all", at [93], and, on the other side, those cases in which "the uncertainties involved in a care plan will have to be worked out after a care order has been made and while the plan is being implemented.' In this case, when asking the question, did the judge's decision in the present case fall on the wrong side of the line or was there sufficient clarity "of the likely way ahead for the child for the foreseeable future"? the answer is no. This was plainly not a case in which there was an uncertainty which needed to be resolved before the court could decide whether it was in B's best interests to make a care order at all, and the care plan was sufficiently specific as to the LA's long-term plan for B's care that there was no uncertainty which required resolution before the court made a care order. The judge did not need to await the formal outcome of the assessment of Maternal Aunt as a foster carer not only because that outcome was sufficiently clear but also because, as the judge decided, this did not justify further delaying the determination of the proceedings.

- In relation to the submissions that the judge failed to consider the welfare checklist in full and omit other relevant factors, the overarching question is, as set out by Peter Jackson LJ in Re DAM (Children: Care Proceedings) [2018] 2 FLR 676, at [7], whether the judgment is "adequately reasoned" and enables "the reader, and above all the family itself, to know that the judge asked and answered the right questions". The trial judge took into account all the relevant welfare factors.

Ground (7): The trial judge was entitled to make an order under s.91(14). Such orders are not confined to cases of repeated and unreasonable applications, for example see Re K (Special Guardianship Order) [2013] 1 FLR 1265. There were powerful reasons for concluding that B required a "period of calm" and that the mother could not be trusted not to "attempt to return the matter to court".

In conclusion,  "the option of B living with [Maternal Aunt] pursuant to" an SGO was comprehensively considered and the judge was able properly and fairly to determine this issue without Maternal Aunt being represented.  The appeal was dismissed.

Summary by Emily Ward, Barrister & Deputy Head of Family at Broadway House Chambers.

You can read the full judgment of Re C-D (A Child) [2020] EWCA Civ 501 on BAILII