The case concerned ‘B’ an 8 year old boy who was subject to care proceedings following concerns about him suffering ongoing emotional harm and neglect. We represented B through his Guardian and played a central role in determining his best interests both in the short term and the long term.
B was subject to care proceedings in which his father accepted that he would not be able to put himself forward to provide long term care. B’s mother came to a similar decision during the first part of the part-heard final hearing. During the proceedings, a maternal aunt was put forward to be assessed. She had two viability assessments and a special guardianship assessment, all of which were negative.
During a part-heard final hearing in July 2019, the Independent Social Worker who assessed the maternal aunt, was clear that a special guardianship order was not the correct legal framework under which B could safely be cared for by his aunt due to numerous concerns which led to the risk that B would suffer emotional harm. The Independent Social Worker put forward the possibility of the maternal aunt being assessed as a foster carer with the view of B being placed in her care under a Care Order.
The judge gave her substantive judgment in August 2019 in which she determined that the threshold criteria under s. 31 of the Children Act 1989 Act were established and that B would be at risk of significant harm in the care of either of his parents. She also accepted that a special guardianship order in favour of the maternal aunt would not meet B’s needs and would place him at risk of further harm.
The judge determined that the only ‘realistic option’ was a care order. Lastly, she approved the local authority’s proposed care plan in relation to contact between B and his mother.
The final hearing was adjourned for several months to allow the maternal aunt to undertake some direct work about her understanding of the risks posed by the parents and to engage in a fostering assessment. At a further case management hearing, the court also refused the mother’s application for the maternal aunt to be joined as a party, taking the view that the aunt’s case could be advanced by the mother’s legal representative. The judge also indicated that she would be considering making a section 91 (14) order against the parents and directed that the Guardian specifically address this point in her position statement.
The second part of the final hearing was listed to be heard in October 2019, shortly prior to the completion of fostering assessment. A professionals’ meeting was convened to obtain an update from the fostering assessment assessor. During this meeting she confirmed that, for a variety of reason, the assessment of the aunt would be negative.
The local authority’s care plan was for B to be made subject to a care order and placed in foster care. The Judge made a care order stating 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) Children Act 1989 in respect of both the mother and the father.
The mother sought to appeal on seven grounds as follows:
Ground 1 - The local authority care’s plan in relation to contact between the mother and B was approved in the absence of hearing evidence or submissions on the matter.
Ground 2 - The court was wrong to make a care order in the absence of a Re B-S analysis (or indeed any analysis) of the options of the care of B by his maternal term aunt and long-term foster care.
Ground 3 - The judge was wrong to equate the placement of B in foster care with a family member to a long-term foster care stranger placement resulting in no decision or consideration of proportionality.
Ground 4 - The final hearing took place prior to receipt of the foster care assessment the maternal aunt and without any support plans, leaving a gap in the evidence.
Ground 5 - Appropriate provisions were not made to ensure the maternal aunt effective access to justice at the final hearing.
Ground 6 - The court failed to consider the welfare checklist in full and omitted other relevant factors.
Ground 7 - The judge was wrong to make an order under s91 (14) of the court’s own motion.
The Court of Appeal refused the appeal on all grounds. In doing so, it quoted numerous passages from the Guardian’s final analysis. This document provided a comprehensive analysis of the options available to the lower court as well as an analysis of the proposed contact between B and his mother. The Guardian’s position statement in which she addressed the need for an order under section 91 (14) Children Act 1989 was also quoted in the Court of Appeal’s judgment and was relied upon when refusing Ground 7.
The child B was represented, through his Guardian, by child care solicitor Deepa Patel based in the Harrow office.