How often is it that as care practitioners we find ourselves acting for clients who, by reason of a prevailing negative and often aggressive attitude, are seemingly determined to burn all bridges and scupper any chance there might be of sufficiently impressing professionals that it is in the best interests of the children for them to remain in or be returned to the client’s care? I dare say, most of us would say that sadly this is an all too common experience.
It may be said to be a reflection of the work in which we are immersed but that does not mean to say that we should cease our endeavour to see a way through what is often a difficult situation. That at least was the refreshing approach that was adopted by the Family Court at Tunbridge Wells in the decision in Medway Council v (1) El (2) JC (3) Camilla Doolin (Children’s Guardian) (2015) (unreported).
The complicated and convoluted history in the case is well worth consideration.
The father had been the primary carer of the subject child until 2012. A fire at the family home when the child (who was then 10 years of age) was alone with another child triggered police protection, removal to foster care and thereafter an interim care order. The original care proceedings concluded in February 2013 when a final care order was made – the plan being for the child to remain in long term foster care. The local authority’s amended final care plan left open the possibility of a reunification of the child with the father, contingent on the father engaging in therapeutic services of a psychologist, the intention being that he would ‘effect a change in his parenting ability‘.
Whilst the findings of the court were not accepted by the father, they were never the subject of an appeal. Police involvement that had hitherto restricted the father’s contact with the child came to an end in the spring of 2013.
During the summer of 2013 the father completed a 12-week parenting course. The local authority thereafter in October 2013 returned the child to the care of his father. Underpinning the return home was the principle that the father would accept ongoing involvement with and support from the local authority.
In May 2014 the local authority filed an application to discharge the care order on the basis of how well the child was doing in the care of his father. The matter was reserved to the original trial judge. The original guardian was also appointed in the discharge application.
The father proceeded then to inform the court by email of his disquiet in respect of the role of the guardian and court appointed child psychologist. He disclosed details of his complaint to an MEP. The father subsequently wrote to the court stating that he and the child refused to meet with the guardian. He sought the removal of the guardian from the case (an application which was subsequently refused by the judge).
The guardian wrote to the court expressing concern that the child had been returned to the care of his father prematurely and, quite possibly, the 12-week parenting programme had not in fact effected change in his parenting ability.
When this matter came before the court in July 2014, the child was granted separate representation and the court indicated that this was a case where it was appropriate for the guardian to be legally represented by CAFCASS Legal.
Following delays in the local authority filing evidence, a detailed statement from the newly allocated (7th) social worker was filed. The statement set out what was described as ‘a deteriorating position in terms of relationship between the father and social workers‘. This provided the foundation for an application by the local authority to withdraw their application for discharge. In the absence of a further care plan, it was further proposed that the child should move to respite foster care every three weeks from Friday to Sunday.
The guardian filed a statement and expressed the view that the father in fact had not changed and that the child was at risk of emotional and physical harm. She considered that the father was not likely to engage with the local authority’s amended plan. It was her view that there needed to be ‘careful monitoring‘ of the family situation at home by the local authority.
The local authority filed evidence in which it was expressed that ‘the concerns about the father’s parenting…had not receded in the way that had been hoped‘. The local authority wished to continue to share parental responsibility with the father and indicated that in their view ‘there was a need to monitor and safeguard (the child’s) welfare‘.
Professionals subsequently expressed concern in respect of the father’s escalating behaviour – which involved public street protests, contact with BBC reporters and suggestion that plans were afoot for the father to attend before a committee of the European Parliament. The local authority sought injunctive orders to prevent identification of the subject child.
At a substantive hearing in November when oral evidence was received from social workers, the court heard how there had not only been disengagement with but also aggression towards social workers demonstrated by the father. Concern was also expressed as to the likely harm to the child that would be brought about by his over-involvement in the proceedings – the child expressing a desire to publish his experience of the proceedings on YouTube. The proceedings could not be concluded at that hearing and injunctive orders were made, preventing publication of case details. Such orders did not, it would appear, prevent the father’s involvement with the national press.
The local authority subsequently filed a further amended care plan seeking immediate removal of the child to foster care – there being concern that the child was lying to professionals and being left alone. Without further investigation, the guardian did not support the application. That view was supported by the court. The matter was set down for a contested hearing in January 2015.
The local authority filed yet further evidence in which a deteriorating position at home was described along with details of the child still being left home alone.
For a number of reasons (some of which related to the issue of availability of public funding for the father) the matter could not proceed and was re-listed for a date in March 2015. As it happens, the Legal Aid Agency refused funding as the proceedings were for a discharge of a care order and the father was not entitled to non-means and non-merits tested funding.
In advance of the hearing in March the Guardian filed a statement confirming her view that notwithstanding the emotional harm the child had suffered as a result of the father’s conduct and his involvement in the proceedings, it would cause more harm to the child to be removed from his father’s care than to remain. She recommended that the proceedings be brought to a swift end.
On the eve of the final hearing the local authority filed a statement setting out its revised view that the child’s needs could be met by a referral to the Common Assessment Framework (‘CAF’). This necessarily would mean a cessation in involvement with social workers – such involvement being substituted by professionals working in the field of health and education. The clear message being conveyed with such a proposal being that whilst there would still be a level of professional input, oversight and support, the temperature would be lessened by removal of the stressor that was the local authority.
Turning to the findings of the court, perhaps it is unsurprising that the court found that the father had been implacably hostile and had ‘no compunction in behaving aggressively towards professionals whilst in the presence of (the child)‘. Adopting the guardian’s approach on the basis of the balance of least harm, the court found that ‘a change of residence would have a profound effect on (the child) and on close analysis is not viable‘. The court further observed that ‘neither is it workable for a care order to remain as a framework for additional support and protection‘. In respect of the child, it was observed that ‘it would appear that he has become increasingly enmeshed with his father’s thinking in relation to his views of the local authority. If he was to be removed from his father’s care, there would be difficulty in terms of settling in the home of a foster carer and…potentially insuperable problems in terms of contact with his father‘.
Seemingly without any other option (there being no other parent / family member available), the court discharged the care order.
The court was highly critical of the lack of availability of public funding for parents in discharge cases. It is noteworthy that for the great majority of the proceedings the father was unrepresented and the father’s conduct / behaviour remained a real focal point.
Whilst representation cannot always ensure that such behaviour is ameliorated, the outcome in this case might be regarded as a real motivator for care practitioners to think creatively when faced with clients whose conduct is called into question. Indeed, Medway Council v El & Ors highlights how there is scope to persuade the court that it should not be drawn into thinking that removal is the only realistic option available.