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To quote Wham…

The recent first instance case of Z Borough Council v M(1), N(2) & a child (3) in which judgment was given on 25th June 2019 in the Liverpool Family Court, by His Honour Judge Greensmith, provides some sound advice for us all.

The case involved a baby girl, 7 months at the time of the hearing, parents who were presenting as a couple and had had 2 children previously removed from their care and placed with a grandparent under a Special Guardianship Order. There was reference to the fact that the case involved the “toxic trio” of parental substance misuse, domestic abuse and mental health issues. The facts of the case when the child was discharged from hospital following the making of an interim care order were the same as the reasons for the removal of the older children from their care.

The Judge was critical of the formulaic evidence and the lack of any proper analysis of options for the court to consider, other than the preferred option of the professionals involved. A full   Re BS* analysis was required and not one that was tailored to meet only the position of the Local Authority or the Children’s Guardian. The court expects a full analysis of all the possible options.

The Judge was critical that there were no details of support that could be put in place to assist in the possibly of rehabilitation to the parents when the parents had been making improvements up to the time of the final hearing. It was simply not an option considered by the court, as is frequently the case, where a care order is required at final hearing with a young baby, the presumption was that it would be coupled with a placement order.

In this case the parents had started to make changes and recommendations for further work to be completed had been suggested  by an expert psychologist, which had not been taken up by the Local Authority, even though there would have been time for a start to be made before the proceedings concluded.

Where parents have started to make changes to their lifestyles and address their issues the possibility of that change being sustained should be factored into a balanced analysis of the options before the court, rather than a blinkered path leading to the Local Authority’s preferred (and often only) option.

In this case, where the child was very young and had been with a foster carer since birth, the Judge took the view that foster care could be used in order to support the parents in sustaining change, rather than it being the worst thing for a young child. Foster care is usually discounted for a young child as long-term foster care may result in several different placements for a child.

The   Judge also reminds us that adoptive placements can also break down. When looking at options for a child where a placement order is sought, the court must consider the child’s welfare for the whole of her life.

The case also highlights the danger of the Guardian relying too heavily on the information from the Local Authority, as if they do and the court is critical of the local authority’s handling of the case, it calls into question the Guardian’s own judgment.

Since this case involved a 7 month old baby, the Judge concluded that her chances of a successful adoption later, should it become necessary,  would not be prejudiced by her remaining in foster care for longer, to give the parents time to show if they could sustain the changes they were making and engage with additional work recommended by the expert psychologist.

In this case threshold was not disputed by the parents and there was no issue that there should be a care order made, but the Judge rightly stated that the test for a placement order is different and it is helpful to set out the key features that gave rise to his conclusions: and in which he was critical of the Local Authority and the Guardian for determining that a placement order was inevitable:

“a. There is no reference in the final statement of possible support that could be offered to the parents to help them to achieve and sustain improvement and reference a timetable for that support.

b. There is no recognition and thereby no analysis of the progress the parents have made regarding improvement of their own circumstances and how sustainable these improvements are.

c. The parenting assessment was apparently compiled after the local authority had firmly decided on a plan of adoption.

d. The analysis of options available for the child fails to mention key elements of several of the options which have not been considered; these are mentioned above.

e. There is no analysis by either the local authority or the guardian of ongoing contact; parental or sibling.

f. There are reasonable grounds to believe that the Re S (2014) test is met in that the parents are committed to change (ref their change of lifestyle); there is emerging solid evidence they will be able to maintain the change (ref the father gaining employment and the parents accommodation); the change can made within the timetable for the child (before the child reaches two years of age, or thereabouts) “

Whilst the Judge accepted the need for a care order, he did not accept the need for a placement order and sent the Local Authority away to come back with a cohesive care plan which would support future rehabilitation. He envisaged the child remaining in foster care for a further 12 – 15 months whilst work was done with the parents. He indicated that the Local Authority could renew its application for a placement order if it became necessary, and that the parents could apply to discharge the care order if they have reasonable belief that the test was met. The matter was adjourned for the care plan to be revised to one with a plan for rehabilitation within a proportionate length of time.

The moral of the story is that:

  1.  Just because social work statements and CAFCASS case analyses are written on pro forma documents, the content should not be formulaic; and
  2. Just because a child is young enough for adoption, it should not always be the case that a placement order will automatically follow a placement order if, with a bit of time, a parent may be able to parent that child.


*Re B-S (Children) [2013] EWCA Civ 1146 .

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.