Care and placement orders – Case summary of the recent judgment in Bexley LBC v B [2020]

The child (referred to as ‘A’) was born in 2015. She has lived and thrived in foster care since summer 2019.

A suffers from a number of complex disorders which result in significant developmental, educational, physical and medical needs, for example, she takes no food by mouth, and is fed by a tube. A is under the care of a speech therapist, physiotherapist, occupational therapist, dietician, continence nurse specialist, orthoptist, community paediatric nursing and consultant paediatrician. (A’s complete history, needs and complex health issues are explained in detail in the full judgement.)

Her family have a lively and devout religious belief, attending their place of worship regularly, and a traditional outlook. Women in the family tend to dress traditionally. Life centres around the family and place of worship. Her family routinely holidays for six weeks each summer to spend time with their extended family and experience life in their country of origin.

A’s parents always struggled to fully and safely meet and understand A’s complex physical and developmental needs. A specialist foster placement was identified in the summer of 2019. The parents visited and have at all times since then expressed their gratitude and appreciation for the excellent care provided for A by her current specialist foster carer.

As mentioned at the outset of this article, the initial plan was for adoption and to seek an adoptive placement that would be open to direct and indirect contact, but that they would prioritise finding an alternative permanent placement over the promotion of family contact. The case was listed for final hearing in November, but had to be adjourned to January 2020 as it became clear that the requirements of a placement application had not been properly fulfilled and that application by the LA had to be withdrawn.

The Court directed that a fresh CPR including a proper balancing exercise and agency decision maker decision (ADM) should be undertaken, if the LA wished to continue to pursue adoption. It quickly became clear that while there was a strong emphasis on the advantages that ‘permanence’ could be argued to offer A via adoption, and a concession that direct contact was in A’s interests, the LA’s documentation still lacked critically important considerations of key issues.

A further, third, opportunity was given on the first day of this hearing to the LA to include matters that it said had been considered but just had not been written into the fresh CPR. An expanded ‘balancing exercise’ section of the CPR in tabular format was then provided on the morning of the second day of this hearing. Despite this fresh effort, it remained the case that key issues were significantly lacking or wholly inadequately covered, and in particular matters relating to A’s rich national, ethnic, linguistic, cultural and religious identities and heritage, the harms and losses of losing all legal connection and/or meaningful contact with her birth family.

The LA confirmed that it would no longer be pursuing a plan for adoption and sought to withdraw its second placement application.

So, a thorough CAR/CPR was undertaken, assessing the welfare needs, in line with the Welfare Checklist? Not quite….

Overall, the local authority’s evidence was described as “an effective demonstration of confirmation bias”. The virtues of the permanence and security of a ‘forever family’ were sketchily asserted, and additionally appeared to blind the social workers to the need to address those specific aspects of A’s needs and characteristics that did not fit with that proposal, and prevented any real analysis of permanent estrangement from her birth family.

There was no consideration whatsoever that adoption would result in a drastic end to A’s ability to grasp aspects of her heritage, experience the warmth and breadth of her birth family, feel and benefit from the sense of belonging to this large loving family with rich and coherent traditions.

The LA’s approach was starkly epitomised in the following quotation and sole rationale in the initial ADM report: ‘given A’s age the only permanency option viable for A is adoption’. This assertion was made without any supporting analysis, let alone consideration of what other options might exist and how any option does or does not meet A’s needs and welfare interests.

These observations, and the LA’s failure to meet these requirements of well-known law, become particularly pertinent given the local authority’s fundamentally flawed application for a placement order that led to the first final hearing being adjourned.

It is only when the local authority is satisfied that the child ought to be placed for adoption that the duty to apply for a placement order arises under S.22 ACA 2002. A LA cannot be so satisfied until it has made a decision to that effect under Adoption Agencies Regulations 2005 (AAR 2005) reg. 19, (Re P-B (Placement Order) [2006] EWCA Civ 1016, [2007] 1 FLR 1106).

Such a decision is no longer referred to an adoption panel but is to be taken by an Adoption Decision Maker within the local authority, who must consider the child’s ‘permanence report’ and medical reports on the child and his parents (AAR 2005, reg. 19, as amended).

In Hofstetter v LB Barnet and IRM [2009] EWCA 3282 the court set out guidance for the way in which the ADM should approach a case, which included factors such as listing the material taken into account in reaching the decision; identifying key arguments and considering whether any additional information now available to them that was not before the panel has an impact on its reasons or recommendation.

The Statutory Guidance on Adoption 2013 provides further guidance on what the decision maker needs to consider. Regulation 17 of the AAR 2005 sets out the matters which must be contained in the Child’s Permanence Report. The Statutory Guidance on Adoption provides that information must be accurate and distinguish fact from opinion and further lists matters that must be included and adhered to. The guidance goes on to explain why the accuracy of the CPR is so important:

“The accuracy of the CPR is essential…. since it will not only form the basis on which decisions are made about whether the child should be placed for adoption but will also assist the agency in matching the child with an appropriate prospective adopter….and will be the source of the information about the child on which the prospective adopter will rely”.

In Re B (care proceedings: proportionality evaluation) [2014] EWCA Civ 565, [2015] 1 FLR 884, concerning a successful appeal against a placement order, Ryder LJ observed that the CPR “ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated…”

Section 94(1) of the Adoption and Children Act 2002 provides that only persons who meet a “prescribed description” (as set out in the regulations) may prepare a CPR and contravention of this is an offence. ‘Prescribed’ means prescribed by regulations made by the Secretary of State after consultation with the Assembly.

Given the manifest failures to comply properly with the Act and the Regulations and applicable guidance and case law in relation to the CPR, it was clearly not possible for the initial ADM to have made a valid and lawful decision based upon that material (Re B (Placement Order) [2008].

The LA’s legal team will have taken the relevant steps to issue the placement application. In doing so, the lawyer handling this case should have read the relevant documents and should have immediately caused the lawyer concerns relating to the adequacy of the CPR and the ADM decision, and whether the ADM could have made a lawful decision on the basis of the CPR.

The issue of a placement application should not become a rubber-stamping exercise, but a rigorous examination of whether the legal requirements for such a serious application have been met. Sadly, the second opportunity granted to this local authority does not appear to have attracted the necessary rigour either.

Additionally, the second ADM decision, of which I have an undated copy and which was an exercise also undertaken by the Director of Children’s Services, while it does list the factors in the welfare checklist, and considers arguments in relation to both long term foster care and adoption, and refers minimally to some research on disruption rates, is also flawed.

Firstly, it was reliant upon the flawed second CPR, which the social worker herself had to admit in oral evidence was inadequate and should not be relied upon.

Secondly, there was very limited consideration of certain key matters, such as the nature of A’s heritage and family background, the positive qualities possessed by her family and the extent of what could be offered by the positive relationships on offer from her family, and the value to her of their continuation; the consequent losses and harms if she were effectively cut off from them.

The Supreme Court sets out a comprehensive review of the principles applicable to costs orders in care cases in the case of Re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20:

1. The general rule that costs follow the event does not apply to first instance Family Court proceedings concerning children;
2. The general approach under Civil Procedure Rules r44.2(4) and (5) does apply, although not (4)(b) and here not (4)(c), and so covering the conduct of the parties;
3. The costs issue is to be determined as a matter of principle and irrespective of whether any party is publicly funded;
4. Two exceptions to the general rule: reprehensible conduct or an unreasonable litigation stance were correctly identified in Re T (Children) [2012] UKSC 36;
5. There may be other circumstances which justify a costs order in child proceedings;
6. A local authority should be in no better nor worse a position than any other party on the issue of costs.

Conduct of the parties is defined in CPR 44.3(2).

In Re M (Local Authority’s Costs) [1995] 1 FLR 533, Cazalet J stated as follows:

“Any court in deciding the question of costs in child cases should approach the question against that general proposition of no costs and it would be a matter for the discretion of the court in the light of those criteria as to what order for costs should be made. In considering these questions the court will always look in particular at whether it was reasonable for one of the parties to have brought or to have maintained the proceedings…..where there is the exercise of nicely balanced judgment to be made by a LA carrying out its statutory duties, the local authority should not feel than it is liable to be condemned in costs if, despite acting within the band of reasonableness…it may form a different view to that which a court may ultimately adopt.”

In the case of Re R (Care: Disclosure: Nature of Proceedings) [2002] 2 FLR 701, a lengthy fact-finding incorporating allegations of sexual abuse, were subsequently abandoned by the L.A. In that matter costs were awarded, however on a fixed percentage basis rather than for the entire hearing. The Court took “a rough and ready approach” and ordered a percentage of the costs of each of the first 4 respondents which covers additional preparation time and involvement of leading counsel.” In assessing costs in that matter, the Court assessed that the LA was primarily responsible for the waste of time.

The court will have to bear in mind the overriding objective set out in rule 1 of The Family Procedure Rules 2010. The purpose of these rules is to ensure that the court is in a position to deal with cases justly, justly includes, so far as is practicable—

• ensuring that it is dealt with expeditiously and fairly;
• dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
• ensuring that the parties are on an equal footing;
• saving expense; and
• allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

This case also makes reference to the Supreme Court decision in Re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20, where they set out a comprehensive review of the principles applicable to costs orders in care cases.

• The general rule that costs follow the event does not apply to first instance Family Court proceedings concerning children;
• The general approach under Civil Procedure Rules r44.2(4) and (5) does apply, although not (4)(b) and here not (4)(c), and so covering the conduct of the parties;
• The costs issue is to be determined as a matter of principle and irrespective of whether any party is publicly funded;
• Two exceptions to the general rule: reprehensible conduct or an unreasonable litigation stance were correctly identified in Re T (Children) [2012] UKSC 36;
• There may be other circumstances which justify a costs order in child proceedings;
• A local authority should be in no better nor worse a position than any other party on the issue of costs.