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	England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> P (A Child: Use of S.20 CA 1989) [2014] EWFC 775 (16 December 2014) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html Cite as: [2014] EWFC 775

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IN THE FAMILY COURT AT EAST LONDON

		11 Westferry Circus,
		16th December 2014

HER HONOUR JUDGE ATKINSON:

1. P is a little boy who was born on 04/08/09 and is now aged 5 years and 4 months. P has not lived with his mother and father for 2 ½ years. He was accommodated under s.20 Children Act 1989 by the applicant local authority, London Borough of Redbridge, (LBR) on 28^th June 2012 and placed in foster care. Care proceedings were not issued until almost 2 years after his removal, on 30^th May 2014.
2. These parents accept that at the relevant date in 2012, they needed help in developing the parenting skills necessary to meet their son's needs and that the statutory threshold is crossed as a result. On the issue of welfare, suffice to say by way of introduction, that by September 2014 it was clear, on the evidence of the jointly instructed assessment service, Symbol, that these parents were able to resume the care of their son. It was also agreed that they needed a carefully managed programme of rehabilitation which could only commence once they had somewhere to live. The problem in this case and the only reason why P has not been returned to their care is that these parents have no home of their own and it is suggested that the local authority fixed with the obligation to house them, the Royal Borough of Greenwich (RBG) is unwilling to assist.
3. In my judgment, P has not been appropriately cared for by the applicant local authority within the care system where for many years he has languished in s.20 accommodation with no clear plan. It is likely that he will have suffered confusion and some harm as a result. To its credit, the authority fixed with the responsibility for P's care, LBR, has recognised the errors in its management of this family.
4. However those errors are compounded by P's ongoing separation from his parents caused, I am told, by the wholesale failure of another public authority to find them somewhere to live. The RBG is unrepentant in the way that it has handled this housing issue maintaining that it has followed all proper procedures and denying any bad faith. I have listed this case next week for me to determine whether there has been any bad faith in its handling of this case and to give the authority concerned the opportunity to reflect upon the circumstances in which this family finds itself. In the interim I have fixed RBG with the responsibility to support this family through an interim supervision order in the hope that by bringing children's services on board I will see some "joined up thinking" develop within the authority as between housing and children's services.

Background

5. The mother and the father in this case are both relatively young. In addition to the inexperience of youth they have suffered difficult childhoods which have left them vulnerable and ill equipped for the challenges of parenthood.
6. P was born on 4^th August 2009, whilst the parents were living apart. The father lived with the paternal grandfather (PGF) at an address in the Royal Borough of Greenwich (RBG). The mother was living in temporary accommodation at the time in London Borough of Redbridge (LBR).
7. There have been concerns about the family since 2011. Those concerns ranged from poor standards within the home, inadequate supervision leading to a significant number of injuries, and reluctance to access medical attention for P. Both parents seemed to suffer a degree of cognitive difficulties which made parenting challenging for them. They had something of an unsettled lifestyle. From his birth until June 2012, P had resided with his mother in a number of properties sometimes with his father present in the home and on other occasions with her alone.
8. Following a period during which P persistently suffered bruising through poor supervision/ neglect LBR sought the agreement of the mother to s.20 accommodation. On 28^th June 2012 the mother gave her consent and P was placed into foster care. He moved from his first placement when he sustained injuries there and then from a second placement because the foster carers struggled to care for him. The parents became unhappy with the placements.
9. On 5^th July 2012 with the parent's consent, P was placed with the PGF due to the problems experienced in foster care. He remained there making minimal progress. There continued to be concerns regarding his tendency towards boisterous behaviour which generally resulted in him injuring himself and also about his developmental delay.
10. It would appear that very little was going on to assess these parents during this time. There was no plan. On 8^th August 2012 a "letter of intent" was sent. I have no idea whether that letter indicated the LBR's intent to issue proceedings but if it did, they did not follow through. I note that in September and October 2012 the mother was being seen by an occupational therapist but I see no outcome from that assessment. At around the same time the PGF was telling the LBR that he could not cope with caring for P who he considered to be a "disruptive child". On 22^nd October it was agreed that there would be a legal planning meeting and a foster family would be found. A month later on 27^th November the parents were asked if they would consent to s.20 accommodation of P in foster care. They said they needed to take advice. In early December 2012, P was removed from the child protection plan on the basis that the LBR intended to issue proceedings. No action followed. By this time he had been in the care of LBR for 6 months.
11. After 7 months, in January 2013 the parents were finally referred for a parenting assessment. I assume that the actual assessment did not start until some time later because in August 2013, the assessment facility is described as having reached a "mid way" point and concerns were expressed about the parents' ability to parent. I observe that they had not been parenting for some time because at that stage they had been separated from their son for over a year. At the same time the parents were being asked again if they would agree to s.20 accommodation away from the PGF and in a foster placement. The father refused his consent. I should add that during this time P was continuing to present at the assessment sessions with injuries of the sort that he suffered whilst in the care of his parents but he was living with the PGF.
12. On 8^th October 2013 the parents were told that the parenting assessment had been negative though they were not permitted to see it because a senior manager had to "sign off" on the final document. Shockingly and inexplicably, if I read the chronology correctly, the document was never given to the parents in its final form. They were given the interim report in December 2013, 2 months later. Still, no proceedings were issued. By this time P had been accommodated for 16 months.
13. On 2^nd March 2014 the PGF was taken ill. P was placed with foster carers. The LBR seeks to suggest that the parents were contacted but did not respond. The LBR was aware that the parents were unlikely to consent to placement with someone other than the PGF (it is set out in their evidence) and yet because the parents took no action to take him back, P was left with foster carers. When the PGF asked for P to be returned to his care he was told to consult a solicitor. No application was issued.
14. On 16^th May the mother's solicitor confirmed in writing that the mother did not consent to s.20 accommodation in foster care. Two weeks later proceedings were issued. By that time P had been accommodated for almost 2 years. The parents then consented and P has remained in foster care ever since. In its application the LBR sought no further assessments and stated its intention to issue a placement application.
15. In her case analysis on 25^th June 2014 the Guardian (G) remarked that the LA had permitted matters to drift. She noted that the parenting assessment was delayed and was not sufficiently robust. She questioned the extent to which the LBR had ensured the safety of P whilst in the care of the PGF. She said "although P was removed from his parents' care in 2012 permanent plans have still not been made for him". She considered that there were enormous gaps in the evidence and at a stage when LBR had already nailed its colours to the proverbial mast. The 2013 parenting assessment was not robust, in her view. She supported a further, more robust and focused parenting assessment and also a cognitive assessment of the father.
16. The father was assessed by an adult psychologist Dr M. Dr M reported in July 2014. He concludes that the father is not learning disabled. He considered that he has the intellectual capacity to be able to "conceptualise the emotional, physical, educational and social needs of his son P". He went on to conclude that the father's ability to meet P's needs proactively, efficiently and consistently as the "good enough parent" needed further assessment by someone who could be empathic, who had faith in his ability and could identify his strengths and reinforce them. He was of the view that the father has the cognitive ability to understand his weaknesses and the overall capacity to understand P's needs but would need supportive social work intervention to learn how to prioritise and meet these needs.
17. The parents were assessed together by Symbol, an organisation well versed in the sort of sensitive and supportive assessment necessary to get the best out of parents with these sorts of vulnerabilities. The cognitive assessment from Symbol concludes that the parents learning and social needs are more likely the outcome of environmental factors rather than organic factors only and suggests that the parents would, under a robust plan of intervention, be able to build on the skills and knowledge they already have and through this means they could be supported to realise their parenting capacities.
18. Both Dr M and Symbol disagreed with previous assessments that the parents would not engage and said they had great potential to realise their parenting capacities in respect of P, provided that they have access to and fully engage in an enriched multi-agency plan, that is holistic in its approach, and which could well be in place for the long term. The report from Symbol bears no resemblance to the earlier report in method, thoroughness and recommendation. It is an excellent report. Symbol concludes that:

"it is tempting to take a very risk adverse approach with P and assume that he may well be better served by remaining in the care of the local authority with a plan for adoption. We are concerned not to underestimate the quality of the relationship between P and his parents and to acknowledge the role that his grandfather has played in his life. P is very attached to his parents and we can identify no reason to clearly state that they could not care for him. They are inexperienced parents and have not had the sole care of their son for over 2 years but they cared for him until he was nearly 3 and despite the difficulties in that period, P clearly established an attachment to his parents which has endured throughout the separations."

"a carefully executed planned move has the potential to be successful for P…..it is important that the parents are supported in this transition which will not be without its challenges…guidance must be clear and not authoritarian or dogmatic"

19. There is a clear recommendation that the transition plan can only start when the parents are in settled independent accommodation. Once in that accommodation and once they have readied it for the arrival of P, he can be gradually introduced back into his parents' care with the support of Symbol outreach workers and in the knowledge that once they have receded the extended family will be living locally. The accommodation therefore needs to be the place in which the father and P have lived for most of their lives – Royal Borough of Greenwich (RBG).
20. In the light of this report LBR, though cautiously, changed its position and abandoned the pursuit of a placement order. The LBR is very clear that the transition plan under which P is to be returned to the care of his parents must be planned and robust and not start until the parents are settled in their permanent accommodation. Any plan could be managed under a supervision order. The G agrees with this position making the point that without stable and independent accommodation in RBG this plan will fall at the first hurdle. In anticipation of the need to bring RBG into the proceedings, on 15^th Sept LBR made a referral to RBG.
21. That was the position that greeted me on 25^th September at the Issues Resolution Hearing. At the conclusion of that hearing I recited in the order that I expected LBR and RBG to assist the parents with their quest for housing. I gave leave for the court bundle to be disclosed to RBG, and RBG was invited to serve a position statement by 10^th October setting out whether it would accept the making of a supervision order and inviting RBG to outline what long term support it could put in place and "what housing support could be made available". I then listed the case for a final hearing for half a day on 10^th November 2014.
22. On 10^th Oct RBG filed a position statement setting out in 3 short paragraphs that:

a. It did not agree with the making of a supervision order in its favour;

b. It was concerned at the timescales for rehabilitation because "the parents have not secured accommodation" and because RBG questioned the parents ability to care for P;

c. If the supervision order was made then RBG would continue to be responsible until P was living with his parents permanently – which suggests that once rehabilitation was complete they would withdraw which is wholly contrary to advice.

23. The hearing on 10^th November was futile. The parents were no further forward in securing accommodation and it was clear that they were unlikely to receive help from RBG. Provision was made in that order for a statement to be filed by RBG housing and in default for an application to be made for the director of housing to attend the next hearing on 28^th November. A statement was filed and through no error on the part of the parties the request made for the attendance of the director was not dealt with. That was unfortunate because the statement in the bundle is of little assistance. It suggests that RBG is not responsible for housing the parents, that they cannot be assessed as if caring for a child because they are not, and that if and when they do have a child living with them they cannot expect to be given any additional assistance with housing as there are many other equally needy people on the housing list in the borough.
24. At the hearing on 10^th November, LBR agreed to fund a worker from Symbol to assist the parents in their attempts to be accepted by RBG as homeless, or in priority need. I do not intend to recite what the worker from Symbol, Ms Duffy, relates as her conversations with RBG housing. Suffice to say that she asserts that RBG children's services have effectively instructed the housing department not to offer assistance because in their view P is not a "Greenwich" child. I intend to get to the bottom of that exchange and make findings as to what has been said. If such comments were made then it demonstrates a level of bad faith in RBG that will be of importance to anyone charged with reviewing these housing decisions. I would observe, however, that the attitude such comments betrays is entirely in keeping with the attitude revealed in the way that RBG has dealt with this application to date.
25. RBG has on the face of the evidence from Ms Duffy sought to put every possible obstacle in the way of an application to join the housing register, their request that they be treated as homeless. For example, it is asserted that:

a. RBG first refused to accept that the father had the necessary connection with the borough when he clearly has;

b. The parents have not been assessed as needing housing with P because he is not in their care, in spite of the fact that RBG know my intention is to rehabilitate P with them and in spite of their duty to assess him as a child who is reasonably expected to be in their care;

c. They are assessed as needing a one bedroom property as they have no dependant and so if they insist on two they are advised that they will encounter bedroom tax issues;

d. Even though LBR has offered to pay a deposit and first months rent on a privately rented property RBG refuses to give the parents advocates or LBR the list of acceptable private properties as the parents are not assessed as being in sufficient need;

e. On 13^th Nov – in response to advice that they should present as homeless by attending at housing office - the parents were there for 7 hours with their advocates during which they were finally allowed to submit a homeless application as a couple but not allowed to include P as they were told that he would have to be presented to the housing office to be included.

I remind myself that this is an authority which has had sight of the papers in the care proceedings and is fully aware of the circumstances of P's case and the plan for rehabilitation. RBG challenge Ms Duffy's assertions, and if need be I will resolve those issues on the next occasion.

26. At the hearing on 28^th I was invited by LBR and LBG to conclude the proceedings. I was invited to make a child arrangements order in favour of the parents, having found the threshold crossed in accordance with the agreed document. I was then invited to make a supervision order for 12 months to RBG. I was told that the LBR would "keep hold" of P until the parents had appropriate accommodation. Once they had such accommodation the transition plan could begin and P could go home to them. No-one could tell me when it was likely that P would be going home because no one could tell me when his parents would have a home. I pointed out that this plan relied upon a return to the pre-proceedings situation of s.20 accommodation without end; the point was lost on LBR.
27. The parents, supported by the G, invited me to adjourn this case, making the child arrangements order with an interim supervision order to RBG. The parents would agree to s.20 accommodation. By making an interim supervision order it is said I will be able to fix RBG with the responsibility it seeks to avoid and hopefully see the allocation of a SW to the case. I was asked to order RBG housing to reply to certain questions and then relist the matter ordering housing to attend and give an explanation of the likely timescales.

Discussion and decision

28. The threshold in this case has been agreed in accordance with the document appended to the case management order. Accordingly, I am now able to make a welfare decision in respect of P.
29. Before leaving the issue of threshold, however, I would like to make one or two important observations. The relevant date for the purpose of this threshold is the date when P was first accommodated – 2 ½ years ago. For reasons which I am sure are obvious, the significance of those facts is reduced the more distant we are from them. In this case, for example, the more difficult it is to discern whether the child in question has suffered harm as a result of the parenting given to him before separation rather than the events he has had to endure after. I wonder at the impact upon P of the changes in his carers over the 2 years before proceedings were issued in circumstances in which he was living away from his parents with no real sense of why or for how long because LBR had no plan in place. I wonder at how damaging the process of holding him in s.20 accommodation without any plan for his future will have been for him.
30. It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has "disabled" these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents' lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.
31. In these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P's accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object. Meanwhile the child is "parked" and the local authority is under no pressure or scrutiny to ensure that it is dealing with the case in an appropriate and timely fashion. In my capacity as DFJ for East London I warn that there will be nowhere to hide for those authorities in this designated family area who fail the children in their borough in this way.
32. Finally, I would also add that on my assessment of the undisputed facts in this case there is real doubt as to whether LBR had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the LBR there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs. These parents go everywhere with an advocate. They are vulnerable young people. It is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him.
33. Turning now to the welfare decision, and contrary to my usual instinct to bring matters to a close and leave the LA to do its job, I absolutely agree that I am unable to make final orders here today. I am horrified that LBR should even ask and in doing so suggest that we should revert to the arrangement in which we use s.20 accommodation to "hold" the child until an unspecified point in the future when the other authority in this case complies with its housing obligation.
34. I now turn my focus away from LBR to the RBG. The evidence before me today seems to suggest that there has been a complete and utter failure of the RBG to meet its responsibilities to provide housing to this family or even allow them to apply as a family such that these parents are prevented from bringing to an end the 2 ½ years (half of his life) that P has spent as a "looked after" child. Indeed the information that I have received suggests that the RBG has acted in bad faith and has sought to engineer a situation in which they would be freed of the obligations I might impose pursuant to a Supervision Order. I make no findings in that regard but intend to investigate that matter further when this case returns next week. I observe, however, that the most recent position statement from RBG indicates that the housing department are now satisfied that it can be reasonably be expected that P will reside with his parents and they will now consider him as part of any application for housing. However the final paragraph of that statement indicates that the RBG has failed to grasp what it is that this family needs in order to succeed in their reunification because it ends by pointing out that the most likely outcome of the application for housing will be the provision of "temporary accommodation" and that this may include accommodation outside of the Borough.
35. On welfare all parties are agreed. The evidence is that with the right support and rehabilitation package, which I might add the local authority are obliged to provide, these parents have a good chance of being able to parent their child. In order to start the rehabilitation they need their own settled accommodation. They cannot start in temporary accommodation or in accommodation from which they will need to move. That would be, according to the unchallenged evidence, contrary to P's interests. The whole point is that they need to be somewhere they can settle. Somewhere from which they do not need to move. That somewhere needs to be accessible to Symbol Outreach and to their extended family for support. That somewhere is in the RBG. Thereafter they will need a support package far in excess of the support sketched out by RBG in its position statement of 10^th October – essentially, none.
36. Accordingly, I intend to relist this case next week for a hearing before me at which I will direct the attendance of the director of housing in Greenwich or someone who is able to explain to me how we have reached this situation. I have approved a list of questions which I expect to be answered in advance of that hearing.
37. I will also expect that this Judgment is read and with that in mind would remind everyone that when considering outcomes for children we are enjoined to look to the services which are available for each realistic outcome. In this case I am not looking for any services out of the ordinary; I am looking for this family to be housed. These parents are vulnerable. This child is being prevented from returning to his family because they have nowhere to live. That cannot be right. It cannot be right to suggest that they are not in priority need or that they will not be so until they attend at the housing office with P. This child cannot live with his parents unless or until they are in settled accommodation. I have now fixed RBG with the duties imposed upon them pursuant to an interim supervision order. I expect them to attend the next hearing with a timetable and a solution to this problem.

POST SCRIPT:

At the first listed hearing after the one at which I gave the Judgment transcribed above, RBG attended, asserting that they had found accommodation for the family which could be taken up by 15^th December. A transition plan drafted by LBR was drafted on the basis that they would take up residence by Monday 15^th. It transpired that this was not a tenancy or even an offer of tenancy but rather a referral or nomination to be considered for a tenancy by a local housing association. It also became clear to me upon hearing from the senior housing officer who attended on the day that juggling the housing resources of this London authority meant that this family was only ever going to be top of the list when they were recognised as an emergency and it had taken my order that he attend a hearing for them to be so recognised. That is not an acceptable way of working by public authorities in my view. It was known to RBG that the situation was as I have described it as long ago as September. I suggest that RBG ensures that it has systems which enable it to respond more appropriately to such emergencies.

Happily, at the second hearing on 16^th December, the tenancy was confirmed as signed. The transitional arrangements had to be redrafted. I hope and expect that the parents will be assisted to take up their housing.

As a result I had no need to make findings on the disputed facts.

The LBR have committed to embark upon an investigation as to how this child was accommodated without a plan for such a long time. I am grateful to them for that.