The case came before the court following injuries to M which prompted care proceedings being issued. It was identified by the LA that Mother, Father, Maternal Grandparents and Maternal Aunt were in the pool of perpetrators for the injuries, each of them having had unsupervised care of M at the material time.
As with any public law case, at the earliest opportunity the court considered whether there were any alternative carers that could safely care for M. It was identified that a placement with M’s Paternal Aunt may be appropriate when the matter came before the court on 9th April 2021 in respect of interim placement. At that hearing, HHJ Williams recorded on the face of the order the following:
“Upon the court having heard submissions from the parties in respect of M’s placement and whether there should be a placement with the Paternal Aunt, Ms H, which is opposed by the Local Authority for the reasons set out within the viability assessment, and because the cause of M’s injuries and the identity of any perpetrator is unknown, and upon the parents having averred that Ms H has never had any unsupervised time with M and Ms H having indicated the same to the Local Authority and the Guardian, the Local Authority recording that they cannot corroborate that position, noting “it is self-reporting”, and upon the court having heard submissions considering it can see no reason why M cannot be placed with his Aunt, Ms H, subject to the practical arrangements, and if the Local Authority disagree the court would have made the placement either under section 38(6) or an Interim Child Arrangements Order, the court not being in a position to do so today, as the Aunt had requested some more information and needs to make enquiries in respect of her work.” (paragraph 3)
When the matter then came back before the court on 15th April 2021, the LA had not complied with the order of HHJ Williams to provide details of the support that would be available to the Paternal Aunt if the court placed M with her.
Before HHJ Simmonds, the LA argued that they had concerns about the placement, that the Paternal Aunt was on the potential list of perpetrators, the report that she had no unsupervised care of M being ‘self-reporting’ by the family, and that the LA were concerned about the family dynamics and the Paternal Aunt’s ability to protect M from the Father, in addition to the effect that the placement would have on the Paternal Aunt’s own family.
In respect of the LA’s concern that the Paternal Aunt had only self-reported that she had not had unsupervised contact with M, HHJ Simmonds says this:
“Mr Hand [on behalf of the LA] accepts that there is no evidence whatsoever that she has had any unsupervised contact. At best, it is a suspicion, a worry, but with no evidential basis. It is a “we have a feeling there is something going on”. To hold that position would mean that in every case where a viable family placement is an option a Local Authority could oppose it without any evidential basis. This is a direct violation of both the family and the child’s Art 8 rights and has no foundation in law.” (paragraph 6)
Further, in respect of the other concerns raised, HHJ Simmonds noted that on the LA’s own assessment of the Paternal Aunt:
“before me I have an Aunt who is strong and genuine, who is willing to work with the Local Authority, who has two children that are thriving in her care, who is not known to the police, who is not known to the Local Authority, who keeps a very tidy home, “immaculate” in the words of the assessor. A woman who when her brother misbehaved, she acted appropriately; a woman who has given evidence that she has not had any contact with M where third parties have not been present. There is no evidence to counter that.” (paragraph 19)
HHJ Simmonds concludes that M should be placed with his Aunt pursuant to s.38(6) Children Act 1989. However, in the absence of the information which was required from the LA, namely, the details of support to be provided to the Aunt, that placement was not possible and a further court listing was required. The Judge commented that:
“The Local Authority have spent far too much time trying to find evidence that does not exist and less time complying with a court order” (paragraph 33)
The Judge summarised the authorities of Re W (A Child) Adoption Order Leave to Oppose [2013] EWCA Civ 1177, A Local Authority in v DG [2014], Re A (A Child) [2014], and Re W (Children) [2014]. The Judge reiterated the dicta of Keehan J at paragraph 48 in Re HU v SU that:
“48. It must now be clear and plain to any competent family practitioner that:
- court orders must be obeyed;
- a timetable or deadline set by the court cannot be amended by agreement between the parties; it must be sanctioned by the court; and
- any application to extend the time for compliance must be made before the time for compliance has expired.”
Case Comment
This Judgment makes for worrying reading in respect of the delay to this child being able to reside with his Paternal Aunt. The reiteration of the need for compliance with court orders is clearly addressed to all family law practitioners. In this case, the non-compliance by the LA has had an effect on the court’s ability to approve an interim kinship placement where there has been a positive assessment of that identified carer, which the Judge finds “absolutely unacceptable” (paragraph 33).
Full the link to the full judgment please click on the attached link https://www.bailii.org/ew/cases/EWFC/OJ/2021/B26.html
