Introduction

The conduct of a local authority (LA) in public proceedings has come to the forefront of the court’s mind in the recent case of Re YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam). Family law relies upon the collaboration of a multidisciplinary team of professionals to provide an accurate and true depiction of a family’s landscape to the court. This pool of information, enables the court to determine the road map ahead for a child and its family. It goes without saying, that a degree of cooperation and collaboration from the LA is key to hit the ground running when implementing and steering a family forward through a difficult period.

It’s not often that such a case makes the headlines and where a Schedule of Findings (namely failures) was pleaded by the parents against the LA. What makes this case even more unusual is that the mother sought findings against the foster carers arising from the systemic failings of the LA, which were later conceded by the LA.  This case really is a reminder of the devastating consequences that can arise, when the children’s interest and welfare do not remain at heart of the process.

Background

These proceedings concerned Child A (17 years old), Child B (13 years old) and Child D (11 years old). Sadly, Child C (14 years old) passed away in June 2019, whilst proceedings were still ongoing. The children were made subject of interim care orders in 2012 and were placed in accommodation with s.20 foster carers. They were later moved to their current placement with the interveners. Allegations involving sexual and physical abuse were made by the children against their parents and extended family.

A finding of fact hearing in 2013, found the allegations were not proved. The court directed that urgent work needed to be done with the children. Assessments and recommendations were made by a well-known and respected child psychiatrist. In 2014 and 2015, the children commenced work with the social worker and CAMHS respectively. The work undertaken was not in accordance with the expert’s recommendations or in accordance with the court’s directions. The LA also sought legal advice in respect of changing the children’s surname to that of the interveners. The birth parents last had any form of contact with the children in late 2012.

In September 2015, HHJ Rundell adjourned the matter to afford time for therapy to take place and for the psychiatrist to review progress upon completion. Similarly in 2016, HHJ Plunkett adjourned the matter for a further report from the psychiatrist. Upon receipt of this report, it  appraised the court of the lack of progress concerning the children’s beliefs and narrative prior to their removal. The court was also informed that the LA had failed to engage with the interveners that would enable them to work in conjunction with the LA. At an IRH in December 2016, HJJ Plunkett was dismayed by the lack of progress. In January 2017, the LA produced an amended plan that would include contact with birth parents and life story work. 

Fast forward to May 2018 and a Child and Family assessment was undertaken. The children continued to express their desire to be adopted by the interveners and special guardianship orders (SGOs) were recommended. A special guardianship assessment was completed by a social worker from the fostering panel.

In February 2019, Child C’s health took a turn for the worst over a period of several months. Around the same time the children’s social worker also changed. In May 2019, Child C was admitted to hospital. By June 2019, Child C was in a critical state and was on life support. Mother and father had not been included by the LA to meetings with health professionals, where important decisions were made concerning Child C. The Director of Children’s Services at the LA made the executive decision to consent to remove life support. The mother was en route to hospital to say her final goodbyes to her daughter, who sadly had died by the time she arrived.

A further special guardianship assessment was undertaken on a paper basis and a new social worker was allocated to the children. The recommendation was for care orders to remain in place and that SGOs were not in the best interest of the children. Senior management had differing views on this. The interveners’ social worker was pressed to make a recommendation by senior management despite indicating her desire to leave it to the court to decide. This updated assessment was filed by senior management with the recommendation being for SGOs. The interveners were reapproved by fostering panel. In November and December 2019, an application was made by the LA seeking permission to discharge the care orders and to change the children’s surnames respectively. The mother also made an application for contact with the children.

The court adjourned the LA’s application until further work has been carried out with the children and pending an updated assessment of the children. No order was made in respect of the mother’s application for contact.

Issues raised

 1. The need for a LA to comply with court orders, engage collaboratively with other professionals and act in a timely manner.

In 2013 at the fact-finding hearing, HHJ Rundell did not find the children’s allegations of sexual and physical to be proved. However, the learned judge identified that:

“the children now urgently require professional support; probably in the form of therapy and/or counselling. It is important to understand why they have made these allegations, which I have not been able to accept… I invite the local authority, in conjunction with the parents and the Guardian, to act swiftly to arrange such professional intervention as is considered appropriate”

The court made directions in July 2013, that would assist in identifying the root cause of why these children made such allegations. Recommendations made by a psychiatrist included; long term therapeutic help, individual work for one child together with a psychotherapeutically led programme for the whole sibling group and their carers once permanency was achieved.

In January 2014, HHJ Rundell made final care orders for all four children. Life story work with the social worker, who was allocated in April 2014, was a key feature of the care plans. The interveners were also required to supplement this and work in tandem by using information and photos provided by the social worker. It’s clear there was a plan in place or so it seemed. Alarmingly, no such work had been undertaken. It wasn’t until some 19 months later, that the work the court had directed, had commenced albeit on a superficial level. The work did not address the children’s false narrative or the root cause of their issues.

Fast forward to June 2016, some three years after the initial fact-finding proceedings and still no therapeutic or professional life story work had been undertaken. HHJ Plunkett was informed that the local authority had failed to equip the interveners with the support, the 2013 judgment and the required documentation that would enable them to work with the children. The lack of compliance and engagement, allowed the children to remain in the driving seat and continue to believe their false narrative. Moreover, they have been able to recruit the interveners, with whom they live with, into their false narrative.

Taking a step back, one can see how over a period of three years, this can have a compounded detrimental effect on the children’s well-being. Despite HHJ Plunkett sharing his concerns about the foster placement causing emotional harm to the children, nothing was done by the LA. The LA’s obstructive course of action and unfounded resistance resulted in their failures and omissions over the course of eight years. Without doubt, this exacerbated the emotional and psychological harm that these children encountered back in 2013.

2. The remit of the LA’s parental responsibility under s.33 CA 1989, when considering to withdraw a child’s life support and other life sustaining treatment.

 The learned Judge found that this local authority had side-lined the mother during this critical time. During the period in which Child C became unwell and her health deteriorated rapidly, the LA had acted beyond the remit of their parental responsibility that s.33(3) CA 1989 caters for. First, the LA did not involve the mother and father in any of the meetings concerning Child C’s health with any clinicians. Secondly, the parents were never forewarned of the worst-case scenario. Lastly, the parents were unaware that a decision may be needed to withdraw life support of Child C.

Alarmingly, the LA did not have a protocol in place to deploy in instances where a child required serious medical treatment, the withdrawal of life sustaining treatment and the giving or obtaining of consent for the same. Re C (Children) [2016] EWCA 374 provides guidance in cases where the exercise of parental responsibility by a LA, which has a care order in respect of a child. The approach that should be adopted is outlined by King LJ at paragraph 104:

“I have reached the conclusion that there is a small category of cases where, notwithstanding the local authority’s powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority, that the matter must come before the court for its consideration and determination.”

This LA did not make an application to the High Court for it to use its inherent jurisdiction to determine whether Child C’s life support should be withdrawn or not. It was the Director of the Children’s Services who made that judgment call. The mother was en route to the hospital and moments away when Child C sadly passed away. The LA’s lack of compliance with protocols and guidance from case law, resulted in the mother being unable to be by her daughter’s side during her final moments. To make matters worse, the last contact that the mother had with Child C was in late 2012. This in itself was due to the plethora of systemic failings of the LA.

Although not expressly explored in the judgment, it appeared that the LA legal department did not have a system in place for the allocation of complex cases, peer checking legal advice on complex cases, including end of life.

3. A LA’s Unwritten Policy Vs A Child’s Best Interest

 Right from the outset, the LA intended to seek SGOs. An updated assessment was undertaken in May 2019 of the interveners, after the passing of Child C. This addendum report was carried out by a social worker from the fostering team. It was done on a paper basis only and without visiting the interveners or children. What is of note, is the updated assessment did not support SGOs being made. Actually, it did the complete opposite. It highlighted the lack of progress made by the children in terms of their sense of identity and their views about their birth family. Tensions had risen between the interveners and the birth family after the passing of Child C, to the extent where the interveners were no longer able to remain objective about what was in the children’s best interest. It was clear that SGOs were wholly inappropriate and the social worker advocated this.

There was much scrutiny by the learned judge concerning the circumstances in which the addendum report was undertaken and the recommendation itself. The crux of the matter is this, senior management were resolute in their own mind about making SGOs from the outset. The LA orchestrated and crafted its approach around the end goal of SGOs and not what was in the best interest of the children. This was fundamentally wrong. Despite the interveners’ social worker voicing her concerns, the LA continued to turn a blind eye. With pressure mounting, she felt she had no option but to make the recommendation of an SGO.

The take home message is twofold. First, senior management should not ignore the opinions of those who work closely to those that will ultimately be impacted. It can’t even be said that there was miscommunication in this instance, as senior management were fully versed of the concerns, yet chose to ignore these. Secondly, what is good for the LA (removal from LAC), may not necessarily be what is best for the children. It is clear from this judgment, that they are not competing needs. Moreover, the LA should not be advocating orders that are at the behest of the children’s welfare by exposing them to further emotional and psychological harm.

What are the key takeaway points for practitioners and Local Authorities?

1. Keep a child’s best interest and welfare at the forefront of your mind and at the heart of decisions being made.
2. Work in collaboration with the court and other professionals – resistance, non-compliance and any obstructive course of action will not be looked at favourably by the court.
3. Ensure that protocols and guidance are in place and adhered to – be prepared to explain why you have chosen to deviate from these.
4. Senior management needs to engage with other team members and incorporate their opinions into the decision-making process – more joined up thinking by LA’s and detailed written records are ways to achieve this.
5. The impact of unwritten LA policies on the roll out of care plans on the ground for children.

Final takeaway question

Given the extent of the findings conceded by the LA and the damage suffered by the children, will this lead to a damages application?

Written by Natasha Khalique, Pupil Barrister.