Vale of Glamorgan Council v RB & Anor [2024] EWFC 434 (B)

Venue IN THE CARDIFF FAMILY COURTCase No CF24C50173[2024] EWFC 434 (B)2 Park StreetVenue CardiffCF10 1ETDate Friday, 20 th December 2024
Before
HIS HONOUR JUDGE MUZAFFERB E T W E E N:VALE OF GLAMORGAN COUNCILRB & ANMR W SEAGRIM of counsel appeared on behalf of the Applicant Local AuthorityMS S PERRETT, solicitor appeared on behalf of the Respondent MotherMS C JOHN of counsel appeared on behalf of the Respondent FatherMR D CROWLEY of counsel appeared on behalf of the Child through the GuardianJUDGMENTThis Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Between
Vale of Glamorgan CouncilClaimantRespondent MotherDefendantRespondent FatherDefendant

Case overview added by court prior to publication:

[1]Nature of proceedings: application for a public law order[2]Nature of hearing: final hearing[3]Issues: whether a care order or a supervision order should be made[4]Outcome: supervision order made HHJ MUZAFFER: Introduction

HHJ MUZAFFER:

[1]This is my judgment at a final hearing in proceedings concerning a little girl, Ava (not her real name), born in March 2024 and therefore now aged eight months old. Ava is the daughter of RB and AN, the first and second respondents to the Vale of Glamorgan Council’s application for a care order. Ava is a party via her Children’s Guardian, FC.[2]Although the matter has proceeded to a final hearing, happily, it is not to consider the question of Ava’s placement. Ava has remained in her mother’s care since birth and it is agreed by all that it is in accordance with her welfare interests that she continues to do so. The factual basis underpinning this arrangement is also not in dispute with there being an agreed threshold document dated 19 November 2024.[3]The question for the Court to determine is what type of public law order the Court should make. Is it a care order or a supervision order that is the necessary and proportionate response to Ava’s circumstances? The Local Authority seek a care order and this is supported by the Children’s Guardian. Although the mother does not take issue with a care order being made if the Court considers it to be the right outcome, her preference is for a supervision order. That is also the view of the father.[4]The matter proceeded by way of submissions only and I am grateful to the parties’ representatives for the focused way in which they assisted the Court.

Background

[5]The mother and her children have been the subject of Local Authority involvement for some time. In July 2020, the Local Authority received a referral in respect of the mother’s then-unborn older son and Ava’s half-sibling, CW. The concern at this point included the mother’s mental health; she has a diagnosis of bipolar disorder, her substance misuse and the fact that she was homeless. CW was born in November 2020 and immediately placed on the Child Protection Register although he was de-registered just two months later on the mother making significant changes to her lifestyle during her pregnancy and following CW’s birth.[6]Sadly, the mother’s mental health deteriorated in early October of that year with the mother attending at A&E and CW being voluntarily accommodated in a Local Authority foster placement for a period of four days whilst the mother recovered. A care and support plan was subsequently implemented with the mother receiving praise for her engagement with the Local Authority support being offered.[7]The stability was, however, short-lived, with the mother’s mental health leading to a further period of compromised care for CW at the end of October 2021, and then again in November 2021 and in March 2022. The mother would present as erratic and dysregulated with periods of highs and lows. It was said that during these periods, the mother would struggle to offer CW engagement and stimulation and there was also an incident whereby CW and his pram had fallen into a lake due to a lack of supervision.[8]By December 2022, the mother had, once more, made substantial progress and had moved into her own property with the Local Authority closing its case at the end of January 2023. The mother then suffered a further significant deterioration in her mental health barely a week later, with a referral received from the Welsh Ambulance Service stating that she was not acting appropriately in front of CW including shouting and swearing. The mother did not require hospital treatment then, but on 28 February 2023, she was detained under the Mental Health Act 1983. It is recorded that CW had appeared vacant and dissociated whilst the mother was manic and chaotic. He was subsequently placed in foster care where he remained pursuant to the mother’s section 76 agreement, notwithstanding the fact that the mother was discharged from her section some 10 days later. In addition to her mental health, other concerns remained surrounding her lifestyle including her use of cannabis at a high level.[9]Although the mother engaged with the Local Authority with a view to CW being rehabilitated to her care, the Local Authority ultimately issued care proceedings in respect of him in July 2023. CW remained in the care of his foster carer under the terms of an interim care order whilst the mother was the subject of a CUBAS parenting assessment. This concluded that the mother required significant support regarding the impact of domestic abuse and substance use on children as well as therapeutic support regarding her own emotional well-being. The assessment concluded that the risk to CW could not be addressed within his timescales and did not recommend rehabilitation.[10]The Local Authority’s ultimate plan for CW, with the support of his foster carers, was that he should remain with his foster carers long term under the auspices of a special guardianship order. The mother, who by this point was aware that she was pregnant with Ava, did not challenge this plan at a final hearing on 1 February 2024. The mother, I am told, remains supportive of that placement and spends time with CW once per month.[11]Before moving on from CW’s proceedings, I note that the mother was subject to a capacity and cognitive functioning assessment at the outset of that case prepared by Dr Alison White, Consultant Clinical Psychologist. This confirmed that the mother had capacity to litigate proceedings whilst her mental health was stable but noted that:
“Bipolar disorder is characterised by extreme mood swings that include periods of intense emotional highs (mania) and lows (depression). These mood swings can significantly impact a person’s thoughts, behaviours and ability to function in daily life”
. Dr White went on to state that: “Whilst the mother may currently demonstrate the capacity to make decisions at the current time, her ability to do so might fluctuate or become restricted in the future, especially if her mental health deteriorates”.[12]In respect of Ava, the mother only informed the Local Authority that she was pregnant in December 2023, by which time she was approximately six months pregnant. The mother maintains that this is when she found out about the pregnancy and denies having deliberately concealed it. The father was initially reluctant to engage although, on the limited information available, it was identified that he might pose a risk of harm to a child, including by way of the misuse of drugs.[13]A pre-birth assessment was completed dated 12 March, and concluded that although there were many risks to the safety of Ava, the mother was currently presenting positively, had begun to make changes, and had consistently engaged with health, mental health and the pre-birth assessment. As such, the assessment recommended that the mother and the father, who were presenting as a couple, be the subject of a further period of robust assessment whilst residing together with Ava at a parent and baby residential foster care placement.[14]That plan did not actually come to pass as the mother and the father separated shortly after Ava’s birth. Instead, with the consent of both the mother and the father, it was suggested the mother and Ava proceeded to the residential placement alone. The Local Authority subsequently issued these proceedings on 22 April 2024, with the Court making an interim care order by consent on an interim care plan that the mother and Ava remain at the residential centre.[15]A parenting assessment of the mother was completed by the residential unit dated 20 June. This identified a range of positive outcomes including:a. the mother demonstrating a strong ability to provide consistent primary care and protection for Ava ensuring her well-being and basic care needs are met;b. the mother demonstrating a good understanding of Ava’s emotional needs and her needs for stability and routine;c. the mother having engaged in work to understand and address her past experiences with domestic abuse including completing the Freedom Programme; and,d. the mother having demonstrated an ability to maintain positive relationships with professionals as well as with CW’s carers.[16]In respect of her mental health, the assessment records that the mother had demonstrated ‘some awareness’ of the risks associated with this, although her ability to consistently mitigate these risks in real-time situations, including periods of mental health decline had, yet to be tested. The assessor concluded that: “Whilst RB acknowledges the importance of medication and support for her bipolar disorder, there have been instances where her mental health fluctuates and that affects her ability to respond effectively to stresses. This highlights the ongoing need for RB to maintain consistent engagement with Mental Health Services and adhere to treatment recommendations to support her parenting journey”.[17]The ultimate recommendation of the assessment was that the mother and Ava should move to reside together in the community for a period of further assessment. As such, the Local Authority invited the Court to extend the proceedings beyond the 26-week limit to allow for the mother and Ava to move to reside at the mother’s home address and the progress the mother had made to be further tested. The Court approved the change in the interim care plan at a hearing on 29 July extending the timetable for the proceedings from 21 October to 16 December.[18]The mother and Ava moved to their home address on 5 August. Initially, this was with the assistance of a support agency who provided 24/7 support for the first week, reducing then weekly over a further four-week period. As planned, by 9 September, support within the home was reduced entirely and the mother has lived and cared for Ava independently since this time albeit with regular visits and community-based support, such as integrated family support with whom the mother has an allocated worker.[19]There have been no concerns raised at any point during the rehabilitation period in relation to the mother’s ability to meet Ava’s needs. Her care of Ava includes displays of emotional warmth and an attuned mental responsiveness to Ava’s development. The mother has returned hair strand testing that has proved her abstinence from cannabis, and although her test for excessive alcohol usage was equivocal, this was possibly explained by the use of hair products and any concern was not borne out by subsequent blood testing.[20]An updated parenting assessment of the mother was completed by the allocated social worker, and that is dated 15 October 2024. This was positive and recommended that Ava remains in the mother’s care. However, it was the social worker’s view, as subsequently repeated in her final social work statement to the Court that “Only a care order would provide the intervention, safety and oversight that is required within this case”. The social worker went on: “RB’s positive progress to date should not be minimised and this assessment indicates her distance travelled. However, it also highlights the clear complexities and existing vulnerabilities that could pose significant risk of harm to Ava in the future if progress is not maintained”.[21]The parties presented the Court with a united front at the IRH hearing in November, namely that the Court should make a care order by consent on a plan that Ava remains in her mother’s care. I raised concern that no real consideration had been given as to whether a supervision order was the appropriate outcome in the case and what the practical advantages were to a care order when it came to protecting Ava from risk of harm. It also became clear that whilst the mother consented to a care order, she would also agree to a supervision order and, in effect, she invited the Court to make such order as it felt necessary and proportionate.[22]The Court considered that in accordance with the Public Law Working Group April 2023 report on supervision orders, it was necessary for the Local Authority to prepare a supervision order support plan in draft in order to explore what support might be on offer to the mother and Ava in the event the Court did not consider the care order the correct outcome. The Court then listed the matter for final determination.[23]I should note that insofar as the father is concerned, he was the subject of assessment looking at his ability to parent Ava as a sole carer dated 29 August. This was negative, highlighting concerns about his substance misuse and lack of commitment to Ava, and his insight into the same and his unwillingness to engage with support services. I note that he has returned positive drug testing during the proceedings for cannabis, ketamine and MDMA. The father has not challenged the parenting assessment and supports Ava remaining in the mother’s care. In respect of contact, it is proposed that this be reduced to take place on a monthly basis although it is agreed that this will be reviewed subject to the father demonstrating commitment to attending on a regular basis.[24]Finally, I note the agreed threshold document sets out a number of headings including risk of physical harm arising out of the parents’ drug misuse and the mother’s periods of poor mental health when her ability to supervise a child is compromised, a risk of emotional harm again, arising out of periods whereby the mother’s mental health has deteriorated and also the parents’ failure to engage with professionals – in the case of the mother, regarding her entering into a relationship with the father without telling the Local Authority, and the mother’s lack of insight within CW’s proceedings regarding the impact of her mental health on the emotional well-being of a child.

Legal Framework

[25]I am grateful to Mr Seagrim who represented the Local Authority at the final hearing for his succinct and focused appraisal of the relevant law as set out within his position statement and I can do no better than effectively read that into this judgment.[26]Once the statutory threshold that enables the Court to make public law orders is met, whether the Court should then make an order and, if so, what order is determined by applying the principle that the child’s welfare is paramount under section 1(1) of the Children Act 1989.[27]There must be a particular regard to the factors in the Welfare Checklist under section 1(3) of the 1989 Act.[28]The Court is required to consider the permanency provisions of the child’s section 31A care plan.[29]The Court must make no order unless it considers that doing so would be better for the child than making no order under section 1(5) of the Act.[30]The Court should adopt a least interventionist approach per the case of Re W (A Child) (Care Proceedings: Welfare Evaluation and Functions of the Local Authority)[2013] EWCA Civ 1227.[31]Making the child the subject of a care order or a supervision order is an interference with their and their parents’ rights under Article 8 of the ECHR. Article 8 is a qualified right and any interference is not a breach providing it is towards a legitimate aim, necessary in a democratic society and proportionate.[32]The need to test the child’s care plan against the requirement that it is necessary and proportionate has been emphasised by the Senior Courts, as most recently re-affirmed in Re H-W (Children) and Re H-W (Children) (No 2) [2022] UKSC 17.[33]The approach in Re B-S (Children) [2013] EWCA Civ 1 of identifying and articulating the advantages and disadvantages of the realistic options and of avoiding a linear analysis and utilising a holistic analysis applies in a non-adoption case such as Ava’s case, Re J (Children) [2019] EWCA Civ 2300 and R K and L (Children: Fairness of Hearing) [2023] EWCA Civ 686.[34]A child placed at home under a care order in Wales would need to be under the Care, Planning, Placement and Case Review (Wales) Regulations 2015.[35]In Re JW (Child at Home under Care Order)[2023] EWCA Civ 944, the President of the Family Division provided guidance in respect of the making of care orders for a child placed at home including expressly endorsing the Public Law Working Group’s 2021 and 2023 reports and their recommendations were summarised as follows:a. a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;b. a care order on the basis that the child will be living at home should only be made when there are exceptional reasons for doing so. It should be rare in the extreme that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nevertheless, as risks that can be managed with the child remaining in the care of the parents;c. unless in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used;d. where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate; and,e. where a supervision order is being considered, the best practice guidance in the Public Law Working Group April 2023 report must be applied. In particular, the Court should require the Local Authority to have a supervision support plan in place.[36]Finally, the Court may, on an application for a care order, make a supervision order under section 31(5)(a) of the 1989 Act.

Evidence

[37]I have read the relevant documents in the bundle including the parenting assessment of the mother and the father, their final witness statements, and the Children’s Guardian’s final analysis. I have also considered the amended final care plan dated 5 December 2024 and the draft supervision order and support plan dated 2 December 2024. Plainly, I am only going to refer to that which I consider is necessary to explain my decision.[38]The social worker’s updated parenting assessment dated 15 October emphasises the positive progress that the mother has made with Ava noted to be thriving in all areas of her development. It sets out the mother’s consistent engagement with mental health professionals and the fact that she has been proactive in getting herself on a waiting list for further psychological intervention and following up referrals. The social worker felt that the mother had shown insight into the vital link between her medication and the stability of her mental health, learning from an occasion when she left it late to arrange a repeat prescription.[39]The social worker also notes the mother’s positive engagement with drug and alcohol testing which has returned negative results, and her decision to access the range of community support available to her including consistently attending three baby group activities each week. The social worker also records that there have been no concerns with any of the announced or unannounced visits to the mother and Ava since they returned home at the start of August and, in the social worker’s words, “RB’s engagement with Services has enabled robust safety plans to be put in place in relation to any future decline in her mental health”.[40]In terms of concerns and risks, the social worker notes that the mother has yet to have the chance to evidence that she can follow the safety plans during a period in which her mental health may be less stable or compromised. It is also said that at times, the mother’s insight and acceptance in relation to her mental health has fluctuated, and that the current positive position is within its infancy and yet to be shown that it can be maintained.[41]The social worker also identifies concerns surrounding the mother and the father remaining in contact despite their separation. Whilst this has been positive and focused on sharing information relating to Ava, the social worker identifies concern that the mother and the father may reconcile their relationship which would compromise Ava’s stability given the risks that Father presents and identified in his negative parenting assessment.[42]The social worker sets out her conclusions at paragraphs 51 and 52 of her assessment. She writes as follows: “(51) When fully considering the information obtained within this parenting assessment, it is my recommendation that the outcome of this assessment is positive. RB has evidenced that she is able to meet Ava’s needs safely and consistently throughout this process. I recommend that Ava remains within the care of RB and RB continues to be Ava’s primary caregiver. (52) I would recommend that Ava remains within RB’s care under a statutory order and believe that only a care order would provide the intervention, safety and oversight that is required in this case. RB’s positive progress to date should not be minimised and this assessment indicates her distance travelled. However, it also highlights the clear complexities and existing vulnerabilities that could pose significant risk of harm to Ava in the future if progress is not maintained”.[43]Aside from the fact that the social worker offers no further explanation as to why she believes that only a care order would provide the intervention, safety and oversight required, I have some difficulty with her decision to opine on the type of order that she considers appropriate within the context of a parenting assessment. To my mind, having identified the risks that she does, her work at this point would have been better confined to an assessment of the risk with consideration given as to whether, in practical terms, the risk can be managed or whether the risk could be reduced.[44]By setting out her stall in favour of a care order, without any form of analysis of the competing considerations and orders that might be made, the social worker is effectively nailing her colours to the mast and closing her mind to alternative outcomes without the type of proper reflection and balance that is required.[45]In the circumstances, it is no surprise that her final social work evidence dated 6 November, which naturally relied heavily on the parenting assessment, concluded in the same terms. Having identified the strengths and risks detailed within her assessment, the social worker argues in favour of a care order at internal pages 34 to 35 of her statement in which she draws out the following advantages of a care[46]In terms of the balance sheet analysis of the orders available to the Court, this followed at internal pages 40 to 41 of her final statement. Starting with a supervision order, the social worker describes this as ‘viable but discounted’ with the following explanation: “The Local Authority do not feel that a supervision order is the most appropriate order at this juncture. The Local Authority acknowledge the positive parenting assessments of RB and the significant progress that she has made within these proceedings, however, her independent care of Ava remains very much within its infancy and the safety plans in place remain untested… The Local Authority also remain concerned about AN and the role that he plays within Ava’s life. Family time currently requires professional supervision. Scheduling and reviewing is something which the parents are unable to achieve or agree on in Ava’s best interests independently”.[47]In terms of a care order, this is described as ‘viable’ on the basis that “a care order will allow the Local Authority to continue to share parental responsibility enabling them to make decisions on Ava’s behalf.” The social worker then records as follows: “Schedule 4 Placement with Parent Regulations: I am aware of the Public Law Working Group best practice guidance of children being made subject to care orders at home, that is that there should be exceptional reasons for a Court to make a care order on that basis. It is my professional opinion that the exceptionality test has been met in this case and, therefore, consider this option realistic and appropriate for Ava. A care order would mean that Ava would remain a child who is looked after. RB has received a positive parenting assessment and although there is no current evidence to suggest she is either at significant risk of harm in her mother’s care. This is entirely dependent on RB maintaining the changes she has achieved to date which are very much within their infancy”.[48]The paragraph concludes by stating as follows: “In considering this, the Local Authority do consider a care order to be both necessary and proportionate for Ava. The Local Authority also believes that this order is the only appropriate order due to the ongoing concerns surrounding AN and the continued need for professionally scheduled and supervised family time”.[49]The mother addresses the Local Authority’s plan at paragraph 10 of her final statement dated 15 November. In setting out her agreement to a care order, she requests certainty that the Local Authority will consider discharging the care order with a commitment to reviewing it within a year on the basis that she would like for her and Ava to be able to move on with their lives without the Local Authority needing to continue to share parental responsibility.[50]In respect of the father’s position on the Local Authority’s plan, that is set out at paragraph seven of his statement dated 21 November. He describes how he supports the care order to ensure ongoing support to the mother and Ava on the basis that it is early days and the difficulties in the past.[51]In her final analysis dated 18 November, Ava’s Children’s Guardian, FC considers the merits and demerits of both a supervision and a care order. Regarding a supervision order, the Guardian states as follows: “The Court could make a supervision order in respect of Ava. The primary benefits of this option would be that RB would hold parental responsibility for her daughter but the Local Authority could remain in Ava’s life on a statutory basis to advise, assist and befriend. This would be a less intrusive option than that which is being proposed. It is, indeed, an attractive option. I am, however, mindful that bipolar disorder is an unpredictable mental health condition which needs to be very carefully managed”.[52]The Guardian goes on to state: “Sharing parental responsibility for Ava will enable the Local Authority to have a stronger grip on matters. Should anyone notice a deterioration in RB’s mental health, then that information can be swiftly shared and the right support and intervention put in place to safeguard Ava”.[53]Insofar as the comparative paragraph for a care order is concerned, the Guardian states as follows: “The Court could grant the application made by the Local Authority for a full care order. This would enable the Local Authority to continue sharing parental responsibility for Ava, monitoring and supporting the placement on a statutory basis and swiftly intervening to safeguard her should the need arise. I, like the Local Authority, am mindful of the Public Law Working Group Guidance and the decision of Re JW which advocates against care orders being made for children when there is a plan for them to live with their parent, this only being done in exceptional circumstances. However, I share the Local Authority’s view that this is an exceptional case. This, in my view, is a case where it is necessary and proportionate to the risks identified for the Local Authority to continue sharing parental responsibility for this child. It would be the best way to protect Ava from the risk of future harm”.[54]The Children’s Guardian concludes by affirming her support for a care order, although does not necessarily set out much additional detail as to why, having identified the pros and cons of both options, she falls down in favour of a care order.

Analysis

[55]I accept the uncontested evidence before the Court as to the outcome that best promotes Ava’s welfare interests at this time, namely that she will continue to live with and be cared for by her mother. The mother has clearly taken great strides forward over the course of these proceedings and she has demonstrated that she can remain abstinent from substances, has consistently engaged with treatment and support for her mental health and that she can work openly with professionals within the confines of a robust safety plan. As a result, everybody agrees that she has met Ava’s needs well and, if she remains on this trajectory, she will continue to do so in the future. The benefits to Ava of being able to grow up in a secure, stable and safe environment, cared for and loved by her mother do not require further exposition.[56]That said, I also accept and acknowledge the evidence before the Court as to the potential risk to Ava’s welfare should the mother deviate from her current path, whether that be in respect of substance misuse, mental health deterioration or conflict with others. The progress that the mother has made must be set against the ups and downs of her past including a standard of parenting to CW that caused him significant harm and ultimately meant that he was removed from her care. In that sense, the Local Authority and the Children’s Guardian are right to caution me about this still being early days, particularly regarding the mother’s recently established stable mental health. That is something that will only ever be capable of management rather than eradication. The mother will be faced with that challenge indefinitely.[57]In all the circumstances, it is undoubtedly in Ava’s welfare interests that a public law order is made to underpin her ongoing placement with the mother. Making no order or a lesser order is not a realistic outcome and would fail to reflect the extent of the concerns both past and future, and the benefits to Ava of further Local Authority involvement and support. The question is whether it is a care order or a supervision order that is necessary and proportionate in response to Ava’s circumstances.[58]It was submitted on behalf of the Local Authority at the final hearing that the care order is required for two principal reasons. First, to allow the Local Authority to share parental responsibility for Ava and second, to ensure that the Local Authority has a greater degree of oversight on the basis that Ava would be a looked-after child. Mr Seagrim in his note describes these as “crucial differences between a care order and a supervision order” and additional protective features that are necessary and proportionate to protect Ava from risk of harm. I propose to deal with each of those reasons.

Sharing Parental Responsibility

[59]The crux of this part of the Local Authority’s argument centres on the risk of the mother suffering a mental health crisis and the need to safeguard Ava by way of the Local Authority exercising parental responsibility. In submissions, Mr Seagrim sought to distinguish this type of scenario from what he described as “a slow burn deterioration” that the Court might see in say, cases of neglect.[60]The first question for the Court to consider is how the Local Authority would propose to exercise its parental responsibility in such circumstances. Within its final care plan, the Local Authority set out two possible approaches depending on the extent of any ill-health the mother might be suffering. The first is set out at paragraph 65 of the plan and appears to cover a scenario whereby the mother has suffered a deterioration in her mental health, but not to such a degree that she has lost capacity or is hospitalised. That reads as follows: “If RB suffers a deterioration in her mental health such that it impacts upon her capacity to provide good-enough care to care for Ava, the Local Authority would consider options that would not require the removal of Ava from RB’s care. For example, the reintroduction of Touchstone to the family home as an interim measure whilst RB’s mental health is stabilised”.[61]I do not have any difficulty with the soundness of that as a proposal. Clearly, if the mother’s mental health is compromised then regardless of what type of order might be in place, I would fully expect the Local Authority to consider an interim measure such as the reintroduction of Touchstone to allow for Ava to remain in her care whilst she receives any treatment that she needs. However, such an approach is not in any way dependent on the Local Authority sharing parental responsibility. It would be an approach entirely dependent on the consent of the mother to allow live-in support to her home. Parental responsibility is not going to allow the Local Authority to impose this against the mother’s will (which, surely, in any event, would be a wholly inappropriate way to deal with a parent suffering a deterioration in their mental health).[62]The second approach that I alluded to is touched upon at paragraph 66 and then further in 67 of the Local Authority’s care plan, and deals with how the Local Authority might use their parental responsibility to remove Ava from the mother’s care, starting as follows:
“The Local Authority will have the duty and ability to both accommodate and rehabilitate Ava in situations where RB’s mental health may fluctuate without the need for further or repeated public law proceedings A care order would enable the Local Authority to accommodate and appropriately safeguard Ava in these circumstances.”
[63]At paragraph 67, the plan sates as follows: “In the event that RB is sectioned under the Mental Health Act or is in any other way unable to provide care for Ava, the Local Authority will provide accommodation for Ava with mainstream foster carers. The Local Authority will have had advance permission to do so by virtue of the Court’s endorsing the intended care plan which outlines these proposals”.[64]The question that occurred to me and which I sought to explore within the hearing is this: what if the mother has not been sectioned? What if the mother is suffering from a deterioration in her mental health but retains capacity and does not consent to Ava’s removal? The problem is that the plan as drawn effectively provides for the Local Authority to exercise its parental responsibility and remove Ava regardless, without any further reference to the Court. Absent the circumstances being such that they might be described as “a true emergency”, this approach runs in direct contravention to the clear principles and guidance in the removal of children at home under a care order articulated in Re DE (Child under a Care Order Injunction under the Human Rights Act 1998 [2014] EWFC 6.[65]“A true emergency” might very well be the mother being sectioned under the Mental Health Act, but anything else is likely to be far less clear and very likely contentious. Having the plan drawn in terms that allow the Local Authority to accommodate Ava simply because the mother’s mental health has “fluctuated” creates a vacuum that will be filled with uncertainty. First, an uncertainty on the part of the Local Authority as to when to act, with an understandably tempting invitation to act in favour of safety first and the mother and Ava’s rights later. Then, an uncertainty on the part of the mother as to how a fluctuation in her health might be received by the Local Authority and what the consequences might be.[66]If the Local Authority is to comply with the Re DE guidance, then it is now well established that the difference concerning removal of a child from home either under a care order or where there is no care order is largely procedural. Save for in the most urgent of circumstances, any decision on removal will ultimately be taken within the umbrella of court proceedings. The Local Authority’s argument that sharing parental responsibility would be an additional protective feature with a view to using that parental responsibility to effect the removal of Ava in the event of a deterioration of the mother’s mental health is incorrect in law as well as being fraught with uncertainty and practical difficulties. The Local Authority will have a greater degree of oversight on the basis that Ava will be a looked after child[67]Turning then to the second principal argument put forward, the Local Authority’s case is that it will have better and more frequent oversight of Ava’s day-to-day care if she is a looked-after child by virtue of being the subject of a care order. The Local Authority’s final care plan was entirely vague about what this would mean on the ground. At paragraph 52 of the final care plan, it says as follows: “Ava would be visited by Children and Young People Services in line with statutory requirements and more often, if necessary”.[68]Mr Seagrim informed the Court that this would entail visits to the mother and Ava at least every four weeks, and Looked After Children review meetings every three months. In addition, the Local Authority intend to supervise Ava’s contact with the father with the care plan proposing that this ultimately be reduced to monthly, and it was suggested that this was an additional opportunity for the Local Authority to have eyes on the mother and Ava.[69]To compare and contrast, the draft special guardianship support plans sets out the following under the heading “Local Authority Monitoring”: “The allocated social worker/Social Care officer will visit RB and Ava on a four-to-six-week basis at their home address following the making of a supervision order. These visits will be both announced and unannounced. If more frequent visits are required, they will be implemented as needed. This will be reviewed during the eight-to-12-week care and support review meetings”.[70]I suggested to Mr Seagrim that this was broadly the same to that proposed under a care order both in terms of frequency, the types of visits, i.e. both announced and unannounced, and the flexibility for more frequent visits if required. In addition, it appears that a review of the progress under the plan will also happen as regularly as Looked After Children review meetings, with care and support review meetings taking place every 8 to 12 weeks.[71]The only point of real difference then, was the extent to which the Local Authority might be able to undertake additional check-ins with the mother and Ava by virtue of it supervising contact between Ava and the father. Perhaps, surprisingly, the draft supervision support plan was entirely silent as to the question of contact and the Local Authority support for the same. Mr Seagrim was not in receipt of instructions regarding this but it has subsequently been confirmed that the Local Authority will continue to fund the supervision of contact even if a supervision order is preferred by the Court.[72]Accordingly, there appears to be no material differences in the routine observations that the Local Authority will make between a care order and a supervision order. Of course, whether there is a visit scheduled to take place every four weeks or not is somewhat academic in circumstances whereby the mother might suffer a sudden and acute deterioration of her mental health. However, the plans under both orders accommodate flexibility and additional visits if required.[73]Away from the question of observations of Ava and the mother, the other argument relied on by both the Local Authority and the Children’s Guardian is that a care order will obligate what they described as “multidisciplinary working”, which it was said is particularly important in terms of ongoing updating and engagement from any professionals working to support the mother’s mental health. At the moment, the mother is receiving support from the perinatal mental health team, and I can well understand the benefits to the Local Authority of a direct line of communication with any treating clinician.[74]However, two points arise. The first is that the mother is about to be discharged from the perinatal mental health team and, with her mental health currently being stable, she will not automatically be referred to another specialist team. The community mental health team will be her new port of call from where she will be directed to more specialist services as and when required. As such, any pre-existing direct line that existed between Mental Health Services and the Local Authority is about to come to an end.[75]The second point is this: in terms of routine multidisciplinary working going forward, it strikes me that absent a specific crisis or issue, this is likely to be confined to updates provided at review meetings. If the suggestion is that only the Looked After Child meetings will provide for this type of professional involvement, consideration of the draft supervision support plan makes clear that this is not the case, with it being expressly specified that the care and support meetings arranged to review the plan “should be attended by Ava’s mother, father, health visitor and any other professionals working with Ava or her parents at this time”. It seems clear, therefore, that a supervision order being made would make little practical difference to the Local Authority’s approach to team liaison and engagement with other professionals, with there always being scope for urgent interprofessional working in the event of emergency as there would be regardless of whether any order was made at all.

Duration of a care order

[76]I should just mention one other aspect of the Local Authority’s plan for a care order and how it says it might work after being made, namely the question of discharge. Whilst the mother's final statement does not suggest her consent is contingent on the promise of discharge by a certain point, it is clearly something that she has in her mind.[77]On the basis that the Local Authority’s final care plan was silent on this point, Mr Seagrim was asked what the Local Authority had considered. Initially, it was said that the Local Authority had not turned its mind to the question of discharge, which I found surprising given the mother’s position, but it was later confirmed that the Local Authority considered the appropriate point to consider the discharge was when Ava attends either part-time or full-time schooling so, potentially, in two to three years’ time.[78]This struck me as a somewhat arbitrary proposal. If the reason is that only daily school attendance will allow for the necessary oversight or supervision of the mother and Ava, then on what basis do the Local Authority commend to the Court a care plan that only ensures a definite observation of the mother and child’s circumstances once per month in the home and once per month at any contact session in the meantime?[79]My concern is that whilst intentions to review and expectations to discharge within a certain period of time might be reassuring at the point an order is made, they count for little in cases such as this where the risk involved is enduring in nature. The mother will still have bipolar disorder in two-to-three years’ time and the risk of her mental health deteriorating will remain ever present. What is it that the Local Authority consider will have happened to allow for an application to discharge to be made then? Do they have any specific markers in mind? If another social worker takes over the case, will they hold a different view as to what might be necessary? There is obvious scope for real disagreement between the Local Authority and the mother as to the speed of progress and in any such disagreement, the balance of power will weigh heavily in the Local Authority’s favour. It strikes me as unfair in the extreme, and potentially counterproductive in terms of the stability of the placement, to give the mother the hope and expectations of discharge that cannot then be guaranteed to be met.

Conclusions

[80]I have already identified and assessed the risk in this matter and do not propose to do so again. Through her engagement with services and compliance with robust safety plans, which cover both present and future risk in relation to any decline in her mental health, the mother has evidenced that she can manage the risk and reduce it insofar as anybody who is faced with a lifelong condition like bipolar disorder can. She has lived and cared for Ava at home for five months and alone and independently for very nearly four months. The positive changes that she has made have allowed Ava to remain happy, safe and free from risk of harm in a stable environment. These are no longer positive changes that can be described as “untested”, even if it is still early days in the context of the mother’s history relating to CW and the fact that there is plainly still much consolidation to be done.[81]If it is said that a care order will allow the Local Authority a stronger grip on matters than a supervision order, I have not been able to identify where that strength lies or how it might be utilised in any practical sense. The advantages insofar as protection is concerned are illusionary in the circumstances of this case. The mother and Ava’s situation is neither exceptional nor rare when compared to other families where the children are placed at home at the end of proceedings. Yes, the mother and Ava will require ongoing support and services but a care order is not a vehicle to be used to achieve this.[82]As I said at the IRH, what is concerning most in this case is the almost complete absence of proper consideration of the interrelated questions of necessity and proportionality. Neither the Local Authority nor the Children’s Guardian actively considered the greater degree of interference with the parents’ and Ava’s Article 8 rights that comes with a care order. Their rights are not some abstract concept to be glossed over or relegated to an afterthought. The parents ought not to be required to share parental responsibility for their children with the State, and accept everything that comes with that, unless it is necessary and proportionate to the risk of harm to the child. It appears to me that once the conclusion was reached by the social worker that a care order was required, there was then only a token exploration as to whether this was the least interventionist approach in all the circumstances and the subsequent assessments lacked the necessary balance and rigour.[83]A supervision order in this case requires the Local Authority to remain involved on a formal basis in a way that will ensure oversight of an ongoing framework for the support and monitoring of Ava in her mother’s care. There is every reason to believe that the mother’s ongoing engagement with the support services identified within the supervision order support plan and any accompanying safety plan will ensure that she continues to safely parent Ava and provide her with a good standard of care. This approach meets Ava’s welfare needs, is proportionate to the risks that remain to be managed and reduced and limits, so far as possible in the circumstances, the extent of intrusion upon the mother, the father and Ava’s Article 8 rights.[84]For all of these reasons, when considering what order to make and applying the principle that Ava’s welfare is paramount, I make a supervision order in respect of Ava for an initial period of one year. It strikes me that the draft supervision order support plan currently before the Court requires some amendment to account for the question of contact between Ava and her father and I give leave for that amended plan to be filed at a date in January that can be identified in a moment. I also make, at the invitation of the parties, a child arrangements order both confirming the arrangements for Ava to live with her mother and details the provisions for contact with the father as set out within the Local Authority’s documentation.[85]I would just add one final observation: the mother had initially offered her consent to the making of a care order at the IRH in November. One can well understand why. After the unimaginable stress and uncertainty of the proceedings, she was told that the Local Authority supported Ava remaining in her care on the basis that they shared parental responsibility with her via a care order. It is unsurprising in the extreme that she jumped at this as a way of securing the thing that she obviously wanted more than anything else; an assurance that Ava would remain in her care.[86]Obviously, I do not suggest for one moment that the mother was misled as to the Local Authority’s intentions or put under any type of duress, not least because her ultimate decision to consent would have come after the opportunity of advice from her legal representatives. However, it is important for all parties to care proceedings and the Court to bear in mind the circumstances in which parents make these types of decisions and how the balance of power, as a parent may well perceive it, might result in emotionally vulnerable and weary individuals readily agreeing to outcomes that might not be in accordance with either their or their child’s rights and best interests.[87]That concludes my judgment. End of Judgment. Transcript of a recording by Acolad UK Ltd 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com Acolad UK Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

order

a. It will ensure Ava is safeguarded and the mother remains on the trajectory that she currently is.b. It will allow the Local Authority to monitor the existing vulnerabilities and provide further support when required to maintain progress or reduce future risks.c. It will allow the Local Authority to coordinate the interventions that the family receive and submit further referrals if required.d. It will allow the Local Authority to schedule, supervise and review the family time with Ava and support the father to reduce the concerns that relate to his substance misuse and lifestyle choices.