Amber (Unjustified Delay), Re [2024] EWFC 455 (B)

[2024] EWFC 455 (B)
IN THE FAMILY COURT
Date 4 December 2024
SITTING AT HASTINGS
[2024] EWFC 455
Before
HIS HONOUR JUDGE TALBOTTB E T W E E N:EAST SUSSEX COUNTY COUNCILTHE MOTHERTHE FATHER“AMBER” (not her real name)(Through her Guardian)
Between
Respondent MotherRespondentRespondent FatherRespondent
MS C FOX, of counsel, appeared on behalf of the Applicant Local Authority
MR P WAUCHOPE, of counsel, appeared on behalf of the Respondent Mother
MS L WALLS, of counsel, appeared on behalf of the Respondent Father
MR T HUSSEIN, of counsel, appeared on behalf of the Child through the Guardian
Hearing Date 4 December 2024
APPROVED JUDGMENT
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.
HHJ TALBOTT:
Introduction
[1]In this case, I am concerned with the welfare of Amber (not her real name). Amber is in her early teens and is a party to proceedings through her Guardian. The proceedings commenced at the very beginning of January 2024. I am giving this ex-tempore judgment at the conclusion of a Further Case Management Hearing listed before me on 4 December 2024. This is the first hearing that has come before me. In fact, it is the first time the matter has come before any judge as all previous hearings have been heard by the magistrates.[2]I remind myself that the statutory time limit for the conclusion of Public Law care cases in the Family Court is 26 weeks. The importance of that has recently been emphasised once more through the refocusing on the relaunch of the Public Law Outline (“the PLO”).

The Public Law Outline and Delay

[3]26 weeks is a statutory deadline as opposed to an “aspiration” or an “aim”. The impact of delay on the welfare of children is significant. The need to consider the prejudice caused to a child’s welfare through delay is enshrined within both s1(2) Children Act 1989, with which I am concerned in respect of Amber, and within s1(3) Adoption and Children Act 2002, the Act with which Courts are often concerned in cases involving children younger than Amber.[4]Nothing contained within this judgment is intended to be viewed as “guidance” nor, frankly, does it contain anything new or novel. Rule 12 and Practice Direction 12A of The Family Procedure Rules 2010 clearly sets out the proper approach to the setting of a timetable for the child and any extension of it within public law Proceedings. This judgment does not purport to add anything to it. It establishes no new principles whatsoever.[5]Further, the Family Court has the huge benefit of extremely clear guidance set out by The President of the Family Division regarding the importance of PD12A and the PLO and adhering the principles therein. Without purporting to set out anything like an exhaustive list of guidance provided to all practitioners, magistrates and judges on the point:a. “A View from The President’s Chambers: November 2022” emphasised the need for a reconnection with the core principle of the PLO and FPR 2010 PD12A and the statutory requirement that public law cases are completed within 26 weeks;b. The extensive guidance provided in connection with the “Re-Launch of the Public Law Outline” on 16 Januaury 2023 could not have been clearer in the importance of the relaunch and the reasons it had become necessary;c. “A View from The President’s Chambers: July 2024” emphasised the need to re-invigorate the PLO relaunch and for all of those working within the Family Justice System to ensure that the principles of the PLO were given proper regard at all points.[6]MacDonald J in London Borough of Enfield v E (Unconscionable Delay) [2024] EWFC 183, from para 83, succinctly summarised the position regarding the significant and unwarranted delay in that case in the following terms: “83. As noted above, I cannot leave this case without addressing the manifest and wholly unconscionable delay that has occurred. Bluntly, this case has demonstrated nearly every type of poor practice that FPR 2010 Part 12 and, in particular, the Public Law Outline in PD12A was intended to eradicate. That these matters of poor practice are still occurring demonstrates that the provisions of the PD12A are still not being applied consistently and with sufficient rigour by the courts, legal practitioners and welfare professionals.84. The prompt determination of care proceedings under Part IV of the Children Act 1989 is not a mere aspiration. It is what the law requires. Section 1(2) of the Children Act 1989 commands the court, as a matter of law, to have regard to the general principle that delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of that child. Section 32(1)(a) of the 1989 Act requires, again as a matter of law, the court to draw up a timetable with a view to determining public law proceedings without delay and, in any event, within 26 weeks. As Sir James Munby P observed in Re S (Parenting Assessment) [2014] 2 FLR 575: "Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6)(7), a mandatory limit which applies to all cases."85. FPR 2010 Part 12, including PD12A provides a statutory code setting out the legal requirements for the case management of public law proceedings under Part IV the 1989 Act designed to ensure that the mandatory time limit in s. 32(1)(a)(ii). Again, this code is not an aspiration. It is the law. It is what Parliament has required for the benefit of the children who find themselves the subject of proceedings.86. Of course, and as has been observed elsewhere, justice must never be sacrificed on the altar of speed. A balance must be struck between the need for information and the presumptive prejudice to the child of delay as enshrined in s.1(2) of the Act (see S-L (Children)(Care Orders: Adjournment) [2019] EWCA Civ 1571). However, the extent to which the 26 week period can be extended is strictly circumscribed by reference to the child's welfare and the impact on the duration and conduct of the proceedings. Pursuant to s.31(5) of the Act, the court may only extend the 26 week period if it considers an extension necessary to enable the court to resolve the proceedings justly. In considering the justice of the case, the legal requirement in s.1(2) of the 1989 Act to have regard to the prejudicial effect on the child of delay will weigh heavily in the balance. To repeat, s.32(7) provides that such extensions are not to be granted routinely and require specific justification.87. In the foregoing statutory context, there have been multiple examples in this case of a failure by the court, legal practitioners and welfare professionals to comply with the law put in place by Parliament to ensure that children do not suffer damaging delay in the determination of care proceedings brought in respect of them. The failure in this case to comply with law governing delay and the case management of proceedings under Part IV of the Children Act 1989 has led to a new-born child remaining in foster care for over two years whilst the errors and omissions summarised above played out before nine different judges over seventeen hearings involving thirty-three different advocates. The adverse impact on E cannot and should not be underestimated.” "Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6)(7), a mandatory limit which applies to all cases."[7]The importance of adherence to the principles of PD12A and the PLO was subsequently emphasised by MacDonald J in his role as Family Presiding Judge for London within the “Local Practice Note – Getting Back to the PLO in London” – published on 28 November 2024. Whilst, of course, this Local Practice Note applies to cases heard in London, the general principles and the message clearly communicated therein are of direct applicability to all public law cases wherever the children at the heart of them happen to live.[8]I have set out the above at this stage in order to emphasise the ample and clear law and guidance available to all of those who practice and sit in the Family Court in respect of the timetable for public law proceedings and any extension of it. This judgment does not purport to add anything at all to that guidance but simply emphasises the very real negative impact that failures to apply that law and guidance has had on a child in what may be thought of as the sort of case which practitioners, magistrates and judges in the Family Court deal with on a regular basis. It is no more than an example of what happens when the impact of delay is not considered as it should be and insufficient regard is had to r12, PD 12A and the PLO by a Local Authority, other parties, and the Family Court. The History of these Proceedings[9]This case was allocated from the outset to the magistrates. The application for a Care Order, and Interim Care Order, was made by the Local Authority, East Sussex County Council, on 9 January 2024. The first hearing in the case took place on 16 January 2024. It was listed to consider the Local Authority’s application for an Interim Care Order (“ICO”). An ICO was made by the magistrates and a case management hearing listed for 21 February 2024. Directions were made in respect of initial assessments of any alternate carers put forward by the parents and the standard response statements from the mother and the father directed to be filed by 5 February 2024.[10]By 21 February 2024, the date of the Case Management Hearing (“CMH”), it was clear that the need for further case-management directions had arisen including those for hair strand testing of the mother and the father, a psychological assessment of the mother, a risk assessment of the father and further disclosure from the proceedings which took place in the East London Family Court as brought by the London Borough of Bromley in 2017 in respect of Amber. The matter was listed for an Issues Resolution Hearing (“IRH”) on 8 July 2024. The 26 week statutory time limit expired on 9 July 2024.[11]The parties filed a consent order shortly thereafter amending the hair strand testing to body hair testing in respect of the father in light of the length of his hair.[12]The IRH was heard on 8 July 2024, again before the magistrates. As is set out at the head of that order, it was a “case management order made at week number 25.” In fact, the statutory time limit expired the day after the IRH. In that order, the deadline for the mother to file and serve her hair strand testing was extended to 9 July 2024 (the day after the IRH at which the order was made). It was then directed that by 30 September 2024, so well beyond the 26 weeks statutory deadline, that “…the mother shall file and serve further hair strand testing”.[13]The time for the father to obtain his hair strand testing was extended until 29 July 2024, again beyond the 26-week statutory time limit. The time for the psychological assessment to be filed and served was extended to 18 October 2024, again, well beyond the 26-week statutory time limit. A risk assessment to be completed of the father was once again ordered, this time by 2 September 2024. Further directions were made in respect of disclosure of information. Every single one of these ordered had been made previously but had not been complied with. Orders were made for final evidence which culminated in an addendum final case analysis from the Guardian by 22 November 2024 before a final hearing at the Family Court sitting in Hastings on 2, 4 and 9 December 2024 for three days before the magistrates. Importantly, the order contained absolutely no reference to the reason why it was necessary to extend the proceedings beyond the 26-week statutory time-limit, let alone so far beyond the time limit. Nor did the order record why it was necessary to list a final hearing rather than simply an IRH, nor which witnesses in was necessary to hear from at a final hearing. There appears to have been significant lack of engagement with the case management directions made previously. Further, it appears that the issue of both anticipated and actual non-compliance was not raised with the Court as it should have been by the parties.[14]Extending the timetable beyond the 26-week statutory time-limit is not a ‘tick-box’ exercise free from consequences for the children at the heart of the cases heard in the Family Court. It is incumbent on the court to record why in a particular case it is necessary to extend the timetable beyond the statutory time limit. The failure to do so in this case is likely to be because insufficient, if any, thought had been given to the impact on Amber of the extension of the timetable beyond the 26-week statutory time limit.[15]What is particularly worrying is that what then followed was yet more non-compliance with the directions that had been made at the IRH. The reason there needed to be an extension to the filing of hair strand testing and, indeed, a psychological assessment of the mother was that there had been non-compliance by her with previous orders. After that order of 8 July 2024, it appears there was no correspondence at all with the Court until an application was made on 1 November 2024 for re-timetabling. By this point the case was in week 42.[16]The application made by the Local Authority stated as follows: “The Local Authority respectfully requests that this matter be listed for a further case management hearing to consider application for the Local Authority to file and serve a viability assessment of the paternal uncle and also to consider re-timetabling. SWIFT (the Local Authority multidisciplinary in-house resource) have been unable to undertake a psychological assessment of the mother as directed due to her recent pregnancy and birth. Proposed details of re-timetabling and viability assessment are set out in the attached position statement”.[17]At that point, it is important to recognise that the recent birth of the mother’s daughter was, on any view, not a reason for the initial non-compliance with the direction for a psychological assessment. The direction for the assessment to take place was initially made on 21 February 2024. The mother gave birth in October 2024. Nonetheless, the Local Authority applied for re-timetabling which would have resulted in an extension of the timetable to over 52 weeks. Within the application made for such significant re-timetabling, they did not at any point apply to extend the timetable nor set out how any such extension was necessary or in line with Amber’s welfare best interests.[18]Thankfully, at the Further Case Management Hearing (“FCMH”) on 28 November 2024 (week 46) listed as a result of the Local Authority’s application to extend the timetable yet again, the magistrates rightly identified that the delay that had been caused in this case was significant and that it was a delay which had not previously properly taken into account the impact on Amber. The magistrates on 28 November 2024 at the FCMH rightly identified within the recitals to their order, that Amber was “a priority”. It is Amber’s welfare which was the paramount consideration for the court overall and the court had, up to that point, seemingly failed to properly consider the impact of delay on Amber’s welfare. At the very least, no attempts had been made to record the rationale behind extending the timetable well beyond the 26-week statutory time limit, the reasons why such an extension was necessary, nor why delaying a final decision for Amber was better for her than not extending proceedings and making a final order.[19]The magistrates also noted on 28 November 2024 that “Between the last hearing on 8 July (and today’s hearing), the mother has not engaged with the psychological assessment directed and the mother has not attended court today.”[20]The magistrates went on properly to set out within the recitals to that 28 November 2024 order that: “The application was made to re-timetable this matter only at the beginning of November due to the non-cooperation of the parents with assessments and, therefore, Amber has, since January, had no knowledge of what her long-term placement will be”.[21]I remind myself that Amber is 12 years old. This is not an extremely young child with no understanding of the precarious situation she is in. That is not to minimise the impact of delay on children much younger than Amber, far from it. The impact of delay in making final decisions for younger children may manifest itself in a different way but is still as significant. However, it is important to recognise that Amber is not a child who is so young that not knowing where her permanent home is to has no, or little, direct and impact on her emotional welfare. I have no doubt that the impact of the uncertainty on Amber has been significant. The magistrates, on 28 November 2024, rightly determined that the extent of the non-compliance and, most importantly, the impact of that on Amber, required the matter to be reallocated from Tier 1 (the magistrates), to Tier 3 (a Circuit Judge) and that it was necessary for the matter to be re-listed as soon as possible for there to be effective judicial oversight of what had happened previously and what needed to happen in the future.[22]The matter, therefore, came before me today, 4 December 2024, 11 months after the original application was made by the Local Authority. I am extremely grateful to the magistrates who presided over the FCMH on 28 November 2024 and the Legal Advisor for the way in which they both recognised and acted upon the problematic and entirely unjustifiable delay which had previously dominated these proceedings.[23]I have been greatly assisted by counsel who have represented each party at this hearing. It is essential that judges in the Family Court are assisted by advocates of the quality and of the experience of each of those who have appeared before me today. No counsel could have set out their respective clients’ cases with more clarity nor in a more persuasive manner than each have. It is clear, as I have expressed during the course of the hearing, that the non-compliance that has led to this Further Case Management Hearing being listed before me nearly a year after the application was initially made has been extensive, entirely unjustified and has failed to ensure that proceedings are concluded in a timely way in the welfare best interests of Amber.[24]As I have already emphasised during the course of submissions, that is not the fault of counsel, nor, indeed, specific members of the social work team. The statutory time limit is a matter of law. It is set by Parliament and is enshrined within the Acts. Social workers involved in important work with vulnerable children such as Amber, must focus, as they have in this case, on her welfare and making sure things are done in her welfare best interests. Those welfare best interests include matters concluding within the statutory time limit, and social workers must have regard to that. However, in the circumstances of this case, it would not be fair to criticise the social workers. The extension of the timetable for proceedings and the conclusion of proceedings in line with the PLO is a legal matter. It is the job of the legal team within the Local Authority to ensure that the timetable proposed to the court for the service of Local Authority evidence is appropriate and achievable, that court directions are complied with, and that non-compliance with directions by the Local Authority is notified in the proper way at the point that it becomes apparent that it is likely to occur. It is not acceptable to wait for non-compliance to occur and then simply assume that the court will re-timetable as a result. Each party has a duty to notify the court of issues with compliance with court directions. Each of the orders made in this case have contained the following standard “Compliance Warnings”:
“All parties must immediately inform the allocated judge as soon as they become aware that any direction given by the court cannot be complied with and to seek in advance an extension of time to comply. In the event that a party fails to comply with the directions and/or fails to attend any hearing without good reason the court may make final orders including care orders and placement orders at that hearing.”
[25]In this case, it appears that the above important warnings had been ignored or overlooked throughout by the lawyers. The distinction between the social work team and the legal team within the Local Authority in that regard is important. To ensure that a Court is able to make timely decisions for children within public law proceedings, a number of things need to happen.[26]Firstly, both the legal and social work teams with the Local Authority must be alive to how long public law proceedings are meant to take, namely a maximum of 26 weeks. When there is significant non-compliance and delay, as there has been in this case, it is for the legal department to identify that such non-compliance with court orders is likely to occur (or has occurred) and notify the court of it. That is not, of course, to say that every party does not have a duty or responsibility to do that which, in this case, has not happened in a timely manner. However, a Local Authority who hold an interim care order in favour of a child and whose applications the Court are considering, must obviously take account of, and keep track of, its own non-compliance and must immediately notify the court to the fact of likely non-compliance with an order. After all, it is only the local authority who know whether they are going to be able to file their evidence as directed and, if they are not, the reasons why they purport not to be able to do so. Therefore, it is incumbent on the legal team within a local authority to notify the court of such anticipated or actual non-compliance and to make any applications which flow from that.[27]Failure to do so has a direct and very real negative impact on the welfare of the child in respect of whom the Court is concerned. It is said on behalf of the Local Authority that the delays have, in part at least, been caused by the failure of the parents to comply with various directions in respect of drug testing, psychological assessments and engagement with the social work team. It is undoubtedly correct that the parents have not engaged with the vast majority of the directions made this this case. They should have and the court should have been notified immediately or anticipated or actual non-compliance. However, there is an important distinction between parents failing to comply with directions or engagement with assessments or work with the social work team and the failure of a Local Authority to file their evidence as directed irrespective of that failure. Put simply, it is not acceptable for a Local Authority to not file evidence they have been directed to file “as a result of” parents not filing theirs or not engaging with the assessments that have been directed. In the event that there is non-compliance by parents, those representing them should notify the court and other parties as soon as it becomes apparent that such non-compliance is likely to occur and make any applications for extension of time they deem necessary. Such applications may, or may not, be granted by the court depending on the circumstances of the particular case and the delay caused as a result. The Local Authority and those representing the child also have a duty to notify the court of non-compliance and can also make any such applications. However, what is entirely unacceptable is for a Local Authority to assume that the timetable for a child will be extended as a result of the failure by a parent to comply with directions. In this case, I am satisfied that the Local Authority have had insufficient regard throughout for the negative impact on Amber of proceedings being extended as they have previously been.[28]The default position of a Local Authority must be to comply with court directions and to file the evidence directed regardless of compliance, or non-compliance, by others. For example, if a parent fails to comply with a direction for hair strand testing (and no application to extend the deadline for filing the results from such testing is successfully made) then the social worker must file final evidence by the directed date and consider that failure to comply by the parent in the context of their the whole of the evidence within their analysis. If a parent fails to engage with an instructed expert within the proceedings who is then unable to file a report as directed, then that expert must nonetheless file their report by the directed deadline in its, inevitably, limited form. The Local Authority must then file their final evidence as directed, once again considering the non-compliance as part of their analysis.[29]Only if the court has granted an application to amend the timetable will it ever be acceptable not to file evidence as was previously directed by the court. It is incumbent upon Local Authority legal teams to ensure compliance with legal directions on behalf of the Local Authority. I emphasise that such applications may, or may not, be granted depending on the circumstances of the case. Of course, bearing in mind that it is only the Local Authority who know how long their internal “quality assurance processes” take, it is they who should be proposing realistic timetables for the service of their evidence from the outset and they who ensure that their internal processes are completed in time for the evidence to be served by the deadline set.[30]What appears to have occurred in this case is the following:a. The assumption that proceedings will simply be extended because there has been non-compliance by a party.b. The assumption that proceedings will be extended simply because all parties agree to the proceedings being extended.c. The Local Authority not filing evidence as directed as a result of non-compliance with directions by parents.d. The making of applications to extend proceedings after, sometimes quite a long time after, the deadline for the service of local authority evidence, or expert evidence in respect of which the Local Authority have taken the lead, has passed.[31]Applications must be made as soon as it becomes apparent that it is not possible to file by the court ordered deadline. When a deadline for the filing and service of evidence is set in a court order, all parties must comply with it. Of course, I am not blind to the extreme resource issues under which every Local Authority currently labours. However, the reality is that compliance with court orders in an effective and timely manner will ultimately reduce the workload on social workers and lawyers within Local Authorities as the amount of time they spend dealing with “compliance issues” will reduce significantly. A system whereby evidence is simply filed by the deadline set by the court is necessary to ensure that cases are dealt with in a timely manner and within the 26-week statutory time limit. The benefits to the lawyers representing all parties of such an approach are also clear in respect of the reduction in the amount of work involved addressing issues of non-compliance and, importantly, the vast amount of work that is required on a case which is simply “sitting on the shelf” without conclusion in sight.[32]Nothing I have said in respect of the failings of the lawyers in this case should be taken as removing from social workers the need to maintain a firm focus on the fact that delay in final decisions being made for children within public law proceedings is prejudicial to their welfare. That must always be something which is borne in mind by all professionals working within the Family Justice System. However, the failings in this particular case have related to the legal teams not acting as they should in respect of non-compliance and failing to give adequate consideration to the negative impact of delay on Amber’s welfare.[33]Secondly, I must recognise that there has been a failure by the Family Court in this case to properly consider at earlier points the necessity of further assessment in the context of Amber’s welfare needs and in the context of the wholly inadequate reasons given for the failure to comply with directions. There has not, within any of the orders made, been a specific direction that the timetable be extended nor, inevitably as a result, any explanation of why it has been necessary to extend the timetable. Put simply, what appears to have happened is the magistrates have been presented with an agreed proposed way forward by the parties in terms of further assessment and they have simply agreed with it. That is an unacceptable way for the significant decision to extend the conclusion of proceedings such as these beyond the statutory time limit to me made. It is not acceptable for agreements between the parties to extend proceedings are simply endorsed by the court without proper scrutiny of the impact of such a course.[34]PD12 A, para 6.2 sets out clearly what is required whenever the court considers extending the timetable beyond 26 weeks:
“Having regard to the circumstances of the particular case, the court may consider that it is necessary to extend the time by which the proceedings are to be resolved beyond 26 weeks to enable the court to resolve the proceedings justly (see section 32 (5) of the 1989 Act). When making this decision, the court is to take account of the guidance that extensions are not to be granted routinely and are to be seen as requiring specific justification (see section 32(7) of the 1989 Act). The decision and reason(s) for extending a case should be recorded in writing (in the Case Management Order) and orally stated in court, so that all parties are aware of the reasons for delay in the case (see FPR 12.26C). The Case Management Order must contain a record of this information, as well as the impact of the court’s decision on the welfare of the child.”
[35]The obvious benefit of that approach, as well as it being in compliance with the law, is that it sets out clearly why it is that the court determines that extending proceedings for a child beyond the statutory time limit is necessary to resolve matters justly. A failure to do so often results, as I am satisfied has happened in this case, in a failure to consider in any real sense the impact on the child of the delay.[36]From Amber’s welfare perspective, a complete lack of focus on the impact of delaying a final decision for her has led to a wholly unnecessary period of uncertainty for her which has been detrimental to her welfare best interests. It has caused her emotional harm. Having proper regard to the PLO would have avoided a significant proportion of that delay and would have minimised the negative impact on Amber’s welfare.[37]Nothing I say, of course, is indicative of the fact that there will be cases in which an extension of proceedings is necessary to obtain evidence which could not have been obtained earlier but is necessary to resolve the case justly, or because fairness to all parties, including importantly the child, dictates that such an extension is necessary so that proceedings are concluded in the welfare best interests of the child. However, what every judge or magistrate dealing with public law matters must do is have proper regard to r12, PD 12A and the PLO. If they are extending the timetable beyond the statutory time limit they must explain why they are doing so and why the delay is necessary.[38]I cannot reiterate any more than I already have, there is nothing new in this judgment. It is long-established law which has been relatively recently been the subject of significant focus during its re-launch. Everyone practicing or sitting in the Family Court must have regard to it. Had they done so in this case then a final decision would likely have been made for Amber much sooner.[39]That brings me on to the first contentious point before me today.

The Mother’s Application for an Adjournment

[40]It is said on behalf of the mother that it would not be in Amber’s welfare best interests, nor would it be procedurally fair, for matters to conclude today. It is submitted on behalf of M that it is necessary to extend the proceedings until at least January 2025 for two reasons.[41]Firstly, it is submitted on the mother’s behalf that, “Uncle Jay” (not his real name) is a maternal uncle who might, in due course, be able to offer a family placement for Amber which would meet her welfare best interests better than her current placement or another placement foster care. Of course, the starting point on that is that “Uncle Jay” is obviously someone who has been known about for a long time on account of him being Amber’s uncle and is only put forward as a potential alternative carer for her extremely recently. The entirely unexplained delay in “Uncle Jay” being put forward would ensure that any viability assessment could only, if were to occur at all, to be completed by early 2025 at about week 52 of proceedings.[42]Secondly, whilst the making of a Care Order with a plan for her to remain in foster care is accepted to the be the only realistic option for Amber, it is put forward on behalf of the mother that there is a dispute as to contact and that, therefore, the Local Authority plan for Amber is not wholly agreed. The Local Authority plan for contact as set out within their final care plan for Amber is that under the care order they seek, contact between Amber and her mother would reduce to fortnightly following the making of a final order and then, relatively swiftly thereafter, would reduce to monthly contact with the regular safeguards of contact reviews taking place regularly thereafter.[43]What the mother says is that contact should remain weekly as it currently is and certainly, should not reduce to monthly as a result of the clear desire that Amber has for regular contact with her mother and, ultimately, her desire to live with her mother if it is safe for her to do so. There is no dispute about that desire which has been regularly expressed by Amber.[44]It is therefore submitted on the mother’s behalf that as a result of those two factors, and also the limited dispute there is in respect of one aspect of threshold, it is necessary to extend proceedings further and for there to be a final hearing listed in the early new year at some point (at around week 52 or 53 of these proceedings) in order for those matters to be resolved and for the court to hear evidence before determining them.[45]The Local Authority’s case is that matters can properly and fairly conclude today and that they should do in the interests of justice and in line with Amber’s welfare best interests. The Local Authority submit that the issues that are raised (contact, the assessment of “Uncle Jay” and one point within threshold) are matters which can and should be resolved today on the basis of submissions. Of course, I bear in mind the Local Authority’s position at the hearing on 28 November 2024 before the magistrates and, indeed, at the very start of today’s hearing before was that ait was necessary to conduct a viability assessment of “Uncle Jay” within proceedings and they initially invited me to extend proceedings for that to be completed. The position of the Local Authority shifted as the hearing went on but was firmly that proceedings should conclude today by the point of their final submissions.[46]The father’s position, as in fact he set out quite early on in these proceedings, is that he accepts that he is not able to care for Amber in a way that would meet her needs, although he would like to. As a result, he agrees the Local Authority plan for there to be a care order and their plan for contact. He agrees with the proposals for his contact, that being monthly contact to be reviewed in the new year, to consider a move into the community so that activities can be undertaken. His position in respect of “Uncle Jay” is that there is no point in doing the viability assessment because there is frankly no chance of it resulting in a positive outcome.[47]The Guardian’s case, founded on a genuine concern for the impact of delay on Amber, is that there is no need for proceedings to be extended. The Guardian says that the Court must focus primarily on the emotional harm caused to Amber by way of the uncertainty and instability as a result of not knowing where her permanent home is.[48]My starting point is a consideration of two rights: the Article 8 rights of all parties involved, in particular Amber, the mother and the father and the Article 6 right to a fair trial for all parties involved.[49]The right to a private and family life is incredibly important. On the one hand, Amber’s Article 8 rights demand that decisions that are made on her behalf are made, firstly, in her welfare best interests and, secondly, in a timely manner that do not cause her harm through unnecessary delay. The mother, of course, has an important Article 8 right to private and family life which includes being able to bring up her child if it is in her child’s welfare best interests for her to do so, participate in the proceedings in a fair way, being given a fair opportunity and, ultimately, for decisions made in respect of the way in which she spends time with her daughter being made in a way which is reflective of her right to a private and family life balanced with Amber’s Article 8 right for that to take place in a safe and controlled manner.[50]I have also borne in mind the Article 6 rights, in particular, of the mother. That is an absolute right which cannot, on the basis of necessity or proportionality, be impinged. In this case, it is obvious to me having seen the long history of proceedings that the mother’s Article 6 rights are not in any way impinged by the decision which I am going to take to resolve matters today for Amber. The reason for that is it could not be clearer from the orders I have before me that every possible opportunity has been given to the mother to engage with these lengthy proceedings. Indeed, she has engaged to a limited extent at points. She has attended some hearings, and she has, at points, spoken with the social workers. I have before me the parenting assessment, such as it is, of the mother which is based on very limited compliance and attendance with the numerous sessions offered to her. In is right to note that, at points, the decisions taken to provide the mother with yet further opportunity to comply with directions of the court can be seen as over-generous in the context of the previous and consistent failure to comply. The Local Authority have prioritised giving the mother opportunity after opportunity to comply without balancing the impact of doing so against the harm that doing so has caused to Amber. There can be no proper suggestion that the mother has not been afforded a number of opportunities to engage. These multiple opportunities have result, at best, in limited engagement at some points.[51]The lack of engagement, however, is not a reason to conclude that the mother’s Article 6 rights necessitate a further hearing of this matter. She did attend this hearing remotely before leaving in a point of obvious frustration. She attended remotely because, on her own case, she cannot leave her house for any reason at all at any point. It is obvious that her brave decision to accept that she cannot afford Amber the care she needs is one which is entirely realistic and reflective of the evidence before of the dire situation in which she currently finds herself in respect of her mental health and other vulnerabilities and difficulties. Her decision not to be in the hearing as I deliver my judgment is entirely her own. It is a decision which she has taken, I am sure, in the most difficult of circumstances but it cannot be said to be an infringement of someone’s Article 6 rights for a final decision to be made at a hearing in their absence when they have chosen to leave the hearing and not to be present for the majority of it.[52]I have carefully considered the evidence that I have before me. It is clear that every possible opportunity has been given for the mother to engage with these proceedings. She has not been able to and, as a result, the evidence that I have before me is entirely reflective, frankly, of the accepted position on her behalf, namely that she is unable to care for Amber in a way that would meet her welfare best interests. Of course, whether to extend the proceedings or not is a question which ultimately comes down to “necessity”. I ask myself ‘do I need to adjourn for there to be further evidence before me before I can properly make final decisions for Amber in a fair and proper way?’. On the one hand, an adjournment would mean further delay. On the other hand, justice must never be sacrificed on the altar of speed.[53]As a result, I have to consider what evidence would likely be before me were I to adjourn to a future date. Were I to make a final decision in January of next year, the extra piece of evidence that I would have before me is the initial viability assessment of “Uncle Jay”. I consider whether, first of all, that is necessary in order to make a final decision for Amber. Of course, that assessment can take place whether it is under the interim care order which is currently in place or under a final care order. I consider from Amber’s point of view whether there is any benefit to her of extending the proceedings. Of course, on the one hand, it might be said that at some point in the future, a positive viability assessment might turn into a positive full assessment which might turn into a transition of a testing-out period for Amber which might result in an order being made that she were to live with “Uncle Jay” under either a Care Order or a Special Guardianship Order.[54]Just pausing for a moment to consider the logistics of that, there is the necessary testing-out period which would be required for the reasons encapsulated within the “Public Law Working Group – Best practice guidance: Special guardianship orders, March 2021.” This would likely be around three months in the circumstances of Amber and “Uncle Jay” with whom there is little established relationship and with whom Amber has never lived. To get to that point, there would have to be a positive viability and a positive full assessment of “Uncle Jay” which would add approximately 12 to 14 weeks altogether to that process. Accordingly, that would mean we would be six months down the line. The parties would need to consider the outcome of that testing-out period before final evidence could be filed and the matter would then need to be listed. Accordingly, on any view, the quickest that any final decision in respect of a transition to thecare of Uncle Jay could be made would be June 2025. In all likelihood, in my judgment, it is likely to be July 2025 by the time the parties have considered any report, assessment and testing-out period and filed their own evidence. That would ensure that proceedings would be extended to around week 75.[55]I therefore need to consider whether that delay is necessary within these proceedings. From Amber’s point of view, the notion that these proceedings would be extended to 18 months for that process to occur is so adverse to her welfare interests that it cannot be allowed to happen. Amber has already waited nearly a year with a great deal of uncertainty about knowing where she is going to be living permanently. At Amber’s age the negative emotional impact of that on her is significant. The extension of Amber’s timetable to the middle of 2025 is wholly unjustifiable. The prospects of “Uncle Jay” being someone thought best to meet Amber’s welfare best interests appears to be low. This is reflected in the fact that he was not put forward as an alternative carer until nearly a year into these public law proceedings, has not had contact with Amber during the proceedings and Amber has never lived with him.[56]I have considered whether a shorter adjournment until January 2025 is necessary. However, all I would have by that point is a viability assessment of “Uncle Jay”. It would either be a viability assessment which was negative and was unchallenged (in which case I would be in the same position as I am now), one which is negative but challenged or a positive viability assessment which would necessarily lead to further assessment.[57]A positive assessment at the viability stage would not, frankly, make a great deal of difference to the position I am in now. If I made a Care Order and the Local Authority conducted the viability assessment of “Uncle Jay” and that assessment was positive, they can continue to a full assessment under the Care Order. They do not need a court order to do that. If they needed, in their position as corporate parent with overriding parental responsibility in Amber’s welfare best interests, to transition her into her uncle’s care, they could do that. If it is a positive assessment, there is no benefit, as I see it, to Amber of proceedings continuing because the outcome, even taken at its highest of her ultimately being removed from foster care and moved to the care of her uncle is equally as likely whether the proceedings continue or not. I reiterate, for the avoidance of doubt, that the lack of involvement of “Uncle Jay” until nearly a year into these proceedings undermines the suggestion that he is likely to be thought of as the best welfare option for Amber in any event in circumstance where both of Amber’s parents accept that they cannot meet her needs.[58]It is submitted on behalf of the mother that, “in fairness to Uncle Jay” the proceedings should be extended because if the viability assessment is negative, it would give him an opportunity to properly challenge the assessment. Of course, one can see superficially the benefit of that to “Uncle Jay” himself. However, if proceedings same to an end today, then if the viability assessment is negative it is open to “Uncle Jay” to make an application to the Court for a special guardianship order if he is genuinely committed to ultimately providing a long-term placement for Amber. He would need permission to do that, which appears potentially unlikely to be given in light of the lack of established relationship and the fact that Amber has never lived with him. However, nonetheless, he could apply for such permission. Of course, one of the parents could apply to discharge the care order and propose that Amber lives with “Uncle Jay”. However, in light of the fact that is has taken nearly a year of proceedings for the mother to put him forward as an alternative long-term carer for Amber, that may also be unlikely.[59]I have considered the fact that the parents would not be legally represented any more were I to bring proceedings to a close and so such applications would be made more difficult. However, I have weighed that against the stark reality that the extension of proceedings (whilst potentially offering some benefit to “Uncle Jay” and, indeed, to the mother) would do nothing other than very likely cause Amber significant emotional harm by virtue of a significant extension in the already considerable uncertainty she has experienced. As a result, I am as clear as I can possibly be that there is no benefit to Amber whatsoever of extending these proceedings nor adjourning for the making of a final decision to January 2025 or, more realistically in the circumstances, potentially until the middle of 2025. Accordingly, I am satisfied that Amber’s Article 8 rights demand that matters conclude today. I am wholly satisfied I have all of the evidence that I need before me in order to make proper and informed decisions for Amber.

The Limited Dispute as to Threshold

[60]I remind myself that I am not permitted to even consider making a public law order unless threshold is met. There is no dispute that threshold is met in this case. There is no dispute that Amber has suffered significant emotional, physical and educational harm as a result of her needs being wholly neglected partly due to her mother’s mental health issues and use of cannabis and her being exposed to domestic abuse, The dispute, such as it is, is in relation to the precise wording which is properly contained within one aspect of threshold. That aspect of threshold relates to a burn that Amber suffered. The threshold document before me is largely accepted save for that point at paragraph 2(d). Threshold is drafted in the following terms: “On 15 October 2023, Amber sustained a large burn on her arm and Mother failed to seek medical treatment as recommended by 111. No wound remained visible Ms Smith having self-treated this injury”.[61]The mother’s response is: “The mother does not accept this. She immediately treated the arm by running it under cold water as advised by 111. The mother sent the social worker pictures of the injury and the social worker helped provide extra dressings for the wounds. Amber saw a nurse who checked the burn in an appointment that the mother had for herself”.[62]It is clear, in fact, from that response that the area in dispute is whether the mother failed to seek medical attention for Amber as was recommended by 111. I remind myself in terms of the law in respect of threshold that it is for the Local Authority to prove any allegation on the balance of probabilities. They can only do so on the basis of evidence. I can draw proper inferences from the evidence that is before me but I must not speculate nor guess as to what any evidence might show that I do not have. I have determined that this is a dispute which, proportionally, I can and should deal with on the basis of submissions. There is no necessity to hear live evidence in the circumstances and, in any event, by the point that had I determined it unnecessary to do so, the mother had decided not to engage in the hearing anymore saying she found it “too difficult”. I make clear, in fairness to the mother, that even had she chosen to remain in the hearing, I would not have needed to hear evidence from her or indeed anyone else to determine this limited factual dispute that remains.[63]The evidence I have before me is sufficient for me to make proper decisions. Firstly, I have the case note that I have received from the former social worker. This is a full case note provided regarding the communication that took place via WhatsApp between the mother and the social worker in respect of the burn to Amber’s arm. I also have considered the WhatsApp messages and screenshots of some of them that have been provided by the mother relating to both this period and slightly thereafter. The messages that I have clearly indicate that, following an attempt by the social worker to telephone the mother, a number of WhatsApp messages were sent from the social worker, the following at five minutes past three on 17 October: “Hi M, are you free for a visit at 4.00pm today? Want to talk about the review conference today but are also told by the GP that Amber burnt her arm over the weekend. Is she okay?”.[64]The mother’s response three minutes later: “Yep, she’s okay. I called 111. They said ‘Wrap it up’. She refused to go to hospital and I’ve been in contact with 111 for best advice but I have been throwing up most of the day and just want to rest. Nausea sucks. Jay is coming over tonight. He will keep the receipt for you to reimburse. Maybe come tomorrow”.[65]Two minutes later, the social worker responds: “Have you wrapped it? What have you wrapped it in? Do you need anything else for it? Could we do a video call so I can see the burn? I know 111 advised you are seen by a medical professional. Do you think she would go to the GP instead of the hospital?”.[66]One minute later, the mother responds: “She doesn’t want to see anyone and I’m really not feeling great so will wait for Jay. Clingfilm as instructed. It looks a lot better than any burn I’ve ever seen”.[67]The social worker then asks how it happened, indicating there was a clear need for Amber to be seen as the social worker said “as advised by 111 as there could be signs of infection or getting worse and it might be missed without a medical professional seeing her”.[68]M’s response to this obvious concern for Amber raised by the social worker was “I’m throwing up”.[69]Those messages clearly indicate that M was aware of the recommendation of 111 for Amber to go to the hospital, otherwise message sent by the mother saying “Yep, she’s okay. I called 111. They said ‘Wrap it up’. She refused to go to the hospital and I’ve been in contact with 111 for best advice” (emphasis added),makes no sense.[70]There would be no reason for the mother to have a conversation with Amber about going to the hospital unless either she thought herself that was what was necessary or, indeed, 111 had advised her to do so. It is clear the mother did not think it was what was necessary because she did not do it and so, it is obvious, that what has occurred on the evidence before me, accepting as I do the very detailed and clear case note from the social worker, is that a conversation took place between the mother and 111. They advised that Amber go to the hospital. The discussion took place between the mother and Amber aged, at that point, 10 years old. Amber refused to go to the hospital and the mother, therefore, did not take her to the hospital. That is clearly a failure by a parent to follow medical advice. The conversation which the mother herself refers to in which Amber refuses to go to the hospital is obviously evidence that Mother had been advised to take Amber there. She did not do so and, in my judgement, she failed to follow the advice which was so clearly given by 111.[71]I make abundantly clear that, in fact, in the constellation of concerns that is dealt with within threshold and all of the other evidence before me, that finding in and of itself does not affect the welfare decision that I am going to make for Amber. However, it is important that I determine that for Amber’s sake so that the threshold document reflects that the that medical treatment recommended by 111, including taking Amber to the hospital, was not followed. It may well be that the mother did not do it because Amber did not want to go but that is obviously a parent’s responsibility to take a child to hospital with a burn as severe as the one I have seen photos of when 111 had clearly advised that they should be taken. Accordingly, threshold is met as is agreed between the Local Authority and the father and that is largely agreed by mother with that one disputed point that I have found.[72]There is no dispute that threshold is met. An adjournment of proceedings to have resolved that limited factual dispute in respect of threshold would have been entirely unnecessary and wholly disproportionate. It is precisely the sort of factual dispute which can, and should, be dealt with on submissions in the context of the circumstances of a case such as this.

Welfare Analysis

[73]Threshold being met does not mean that I have to make any particular decision in respect of Amber’s welfare. It simply means that I am able to make a public law order if it is in Amber’s welfare best interests to do so. I have to consider the full range of options before me including public law orders such as the one the Local Authority seek and as well as special guardianship orders, private law orders or making no order at all. I must only make an order if doing so is better for Amber than not making an order. I must only make orders which interfere with both Amber and the parents’ Article 8 rights to the extent that it is necessary to do so in order to ensure Amber’s welfare needs are met. Any order that I make must be proportionate to the risks that I identified for Amber were I not to do so. I am satisfied I have all the evidence before me I need to make a final decision for Amber. Just because the parents accept that they are unable to meet Amber’s needs does not mean that I automatically make the Care Order sought by the Local Authority.[74]I make clear that the mother’s non-attendance in the second part of this hearing does not in any way affect the decisions that I have made for Amber and it is not held against her. Her inability to both leave the house and, indeed, continue even on the telephone to participate in this hearing is merely a reflection of how acute and significant her difficulties currently are. Having recently concluded, somewhat inevitably but nonetheless bravely, that she is unable to meet Amber’s needs, I am satisfied that the mother is in an even more precarious mental and emotional state. It is difficult to think of a more difficult time for a parent who loves Amber very deeply but is unable to meet her needs. As a result, I reiterate her non-attendance for most of the hearing or during this judgment in no way negatively affects the view I have taken of her case, nor of her application for yet another extension to the proceedings.[75]I have to apply the Welfare Checklist. I have borne in mind that Amber’s wishes and feelings, bearing in mind her age, are significant. She wants to return home to her mother’s care. She loves her mum very dearly. That is obvious and I accept it entirely. She certainly would want to see her mum more regularly than once a month. That is also really clear to me and I am aware that any decision I make which is not Amber returning home even, though it is accepted by the mother that it is not possible at the moment, or for there to be less frequent contact than there currently is will cause Amber emotional harm. I recognise that and it is something I have considered as part of the balancing of the evidence relevant to my decision as to where Amber’s welfare best interests lie.[76]Amber’s physical and emotional needs are also particularly important. She has the need for there to be someone consistently there to afford her attuned and tailored care, to make sure that her physical needs are met, that her needs for security, stability and safety are not neglected and that the person affording her that care does not prioritise their own needs and desires over her own. Sadly, it is obvious from the threshold before me which I shall annex to the final order I make, that Amber’s needs have been woefully neglected in the care of her mother for a significant period of time. Both the state of the home in which she was living and her complete lack of interaction with the outside world caused Amber huge emotional and physical harm. On any view, the mother herself currently being, on her own account, unable to leave home or even stay on the telephone to listen tot his hearing makes it likely that nothing will have changed for Amber were she to return to her mother’s care.[77]Amber’s educational needs are incredibly important, particularly against the backdrop of not having attended school, particularly between June 2021 and November 2023 and the highest attendance she had ever achieved being 62%. From December 2022 until the Local Authority issued proceedings nearly a year later Amber had not attended school at all. Prior to that, Amber was constantly seen as being unkempt, unclean, dishevelled, and unwashed. That sort of chronic abuse through neglect and the impact of it on children is incredibly significant. What Amber needs, physically, emotionally and educationally, is for reparative parenting, frankly, in order to try and undo the clearest of significant emotional and physical harm that was caused to her as a result of her needs not having been met for such a long period of time.[78]I have considered the likely effect on Amber of any change in circumstances. I make clear I have not simply considered the impact of, for example, contact being reduced from what it is currently meant to be weekly contact. It is clear to me that when contact takes place consistently it is really positive for Amber. That is important. However, more important is the fact that it has not been taking place consistently as a result of the mother’s own difficulties. Were it to have taken place consistently and were I to have any faith at all that it would be likely to take place consistently in the future, I have no doubt that contact would be of good quality and could be more frequent than that which the Local Authority submit is in line with Amber’s welfare best interests. However, the lack of attendance at contact on a consistent basis by the mother in conjunction with her firmly held stance that she cannot even leave her house ensures that there is no prospect of contact being attended on a weekly basis. Amber will, undoubtedly, be affected by the change of circumstance of her permanent position being made clear, namely, not living with her parents, particularly in the context of her wishes and feelings to live with her mum. Amber will also be negatively affected by seeing her mum a lot less than she is currently meant to be doing because she wants to see her. However, Amber would also be negatively affected if she was expecting to see her mother and then her mother did not attend contact, which is what has been happening and what I am satisfied would likely continue to happen if contact was planned to take place on a weekly basis.[79]Amber’s age is significant and it means I give more weight to her wishes and feelings than I would do for a younger child. However, I also have to consider what harm Amber has suffered in the past. She has suffered significant emotional, physical and educational harm in the care of her mother. The mother’s extremely volatile mental health has ensured that she has been simply unable to ensure that Amber’s needs on any front were met on a consistent basis a long period of time. Of course, I weigh that against the stability and security which Amber experiences in her current placement and will continue to experience even were this current placement to no longer be available and another long-term foster care placement sought. Even with all of the instability that does come with long-term foster care, it is clear that Amber will be protected from the sort of chronic neglect and obvious physical and emotional harm of the most significant kind that she experienced largely as a result of her mother’s significant mental health issues.[80]Inevitably, but bravely, both parents recognise they are not able to meet Amber’s needs. I have already set out how the potential, and I can put it no higher than that, for “Uncle Jay” to meet Amber’s needs long-term, is a matter that can properly be explored by the Local Authority under a care order and is not a matter which necessitates an adjournment. However, nonetheless, it is important because it is relevant to me whether “Uncle Jay” is likely to, in due course, be able to afford Amber the care that she needs. Of course, I bear in mind that “Uncle Jay” is someone whose existence has been known for a long time but who has only very recently been suggested as being a suitable alternative carer. That is not to undermine any assessment which is due to take place as part of the Local Authority’s care plan for Amber, but this is merely a reflection of the reality of the position as it is before me.[81]I have considered the range of options available to me. It is accepted across the board that the only placement that could possibly be seen as being in Amber’s welfare best interests is her being placed outside of her parents’ care. The father and the mother accept they cannot afford her good enough care. I have considered whether there is a basis to adjourn and I have already set out my conclusion that there is not. I have considered whether there is a proper basis for considering that delaying a final decision for Amber could be necessary in her welfare best interests for further consideration of “Uncle Jay”. I am satisfied for the reasons I have given that, even if the assessments are positive, the conclusion of proceedings does not prejudice Amber were it to be in her welfare best interests moving into “Uncle Jay’s” care in the future.[82]Accordingly, whilst, of course, I have not undertaken a linear assessment of the options before me, it is accepted that the only two options are a care order and a continuation of Amber’s current placement in foster care or an adjournment. An adjournment not being necessary, it is clear to me that a care order is the only order I can make which is capable of meeting Amber’s welfare needs. There are downsides to a care order and a plan for long-term foster care for Amber. These include the potential stigma of being a looked-after child, the intrusive nature of social work intervention, medicals, needing to get the Local Authority’s permission to go on certain school trips and the like; all of these things are relevant to Amber and where her welfare best interests lie. Further, the fact that she wants to be back home with her mum and she is unable to be and the potential feeling of being different to her friends who are not subject to Local Authority regulations in the same way are important and relevant in the potential downside to such a placement.[83]However, they are far outweighed by the obvious positives to such a placement. Long-term foster care would ensure that Amber is able to experience life in a way that an 11-year-old should with as much stability and consistency as she realistically can have at this point in time and with the certainty that even if, as happens, foster placements are changed at relatively short notice because notice is given, she will be accommodated in a way which is safe and in which her emotional, physical and educational will be met. Even with the obvious downsides, the overwhelming benefit to Amber in the circumstances of a Care Order being made with a plan for long-term foster care easily satisfies me that that is the only option I can endorse for her which meets her welfare best interests at this point in time. As a result, it is clear to me that I must make the Care Order that the Local Authority seeks and there is no reason from Amber’s welfare point of view, nor from a procedural fairness point of view, why that should not be done today.[84]In terms of contact, the other aspect of the care plan that I must consider, it is accepted by the father that monthly is the right frequency at this point in time. It is, as Ms Walls has rightly acknowledged, monthly now after a long period of build up by the way of letters and that the relationship between Amber and her father needs to be developed in a careful and planned manner. It is accepted by him that reviewing the situation in a year may well lead to an ability for contact to move out of a contact centre and into the community if that is in line with Amber’s welfare best interests.[85]In respect of the mother, the mother does not agree the Local Authority’s plan for contact. The Local Authority propose that the weekly contact that is meant to be taking place at the moment relatively swiftly reduces to fortnightly contact. Shortly thereafter, they propose a move to monthly contact, to be reviewed in the usual way at regular intervals. The mother says that whilst she has not attended contact for a significant period of time because of her poor mental state, Amber’s obvious desire to spend time regularly with her mother if she is not able to live with her is something which should be explored further by the Guardian in an addendum final analysis.[86]Of course, it would be open for me to adjourn the final decision on the basis that that such work was necessary. However, on the evidence before me there is no such need for an adjournment. The mother’s problems, particularly with her mental health, are currently so significant that she is not able to attend contact with Amber at all. On her own account, she is not able to even leave her house or use a telephone for any significant period of time. She has not attended contact for quite a while. I am told that she has also not attended contact consistently with her younger daughter (not subject to these proceedings) who lives with her father (who is also not involved in these proceedings).[87]For the avoidance of any doubt, I am clear that it is not simply a choice that the mother is making simply not to see her daughters. She is in a very difficult position. However, the impact on Amber of her mother not attending contact that is schedule is that there is likely to be a very real and impactful sense of sadness, uncertainty and frustration at knowing that the plan is for her to see her mum every week, but it is just not happening. The negative emotional impact on Amber and ultimately the impact on Amber’s relationship with her mother long-term is significant. Amber is being emotionally harmed by expecting there to be contact and it not happening. Also, Amber’s view of her mother, frankly, is being damaged and the chances in the future of that relationship being as positive as it can realistically be being reduced every time Amber expects there to be contact, hopes there is going to be contact, and then it does not occur.[88]The Local Authority plan for a reduction, firstly to fortnightly and then to monthly, is based on the assertion that Amber needs some time to adjust to her placement being made permanent and that it is reflective of the lack of consistent engagement with contact. I am satisfied that the reduction to monthly contact is a reduction which is in Amber’s welfare best interests, with the caveat that there be regular reviews of contact. Monthly contact is likely to be the greatest frequency that the mother can properly and consistently engage with and it is the frequency which is most likely to result in Amber’s relationship with her mother being maintained in a way which is both manageable for the mother and in Amber’s welfare best interests.[89]If monthly contact is attended consistently, it may be that contact in due course at a greater frequency is what is determined to be in Amber’s welfare best interests. However, as of now, anything more than monthly direct contact would just lead to further emotional harm for Amber which cannot be seen to be in her welfare best interests. I therefore approve the Local Authority’s plans for Amber in their entirety including those for contact.[90]Finally, I return to the issue of delay. The impact on Amber of the wholly unnecessary delay that has blighted this case cannot be underestimated. Having been caused significant harm before proceedings were issued because of the care she was afforded; Amber has now been caused further emotional harm as a result of the inexplicable and unjustifiable delays agreed by the parties and endorsed by the court. Whilst I am pleased to have been able to bring that delay to an end in the present case for Amber’s benefit, I hope that lessons can be learnt to avoid the same thing happening in future cases before me in respect of other children on whose welfare the court is primarily focused.[91]In the usual way, the Local Authority will obtain a transcript of this judgment at their expense. I have already indicated to counsel that I may publish this judgment, subject to any further arguments advanced in writing. I shall, of course, consider any further submissions in respect of publication which are made before making a final decision as to publication.

Postscript RE: Publication

[92]Following the receipt of the approved transcript of this judgment, I have received written submissions in respect of publication from all parties. The Guardian submits that they would welcome the publication of the judgment, as was made clear in the hearing. The father also supports the publication of this judgment. The mother does not oppose the publication of the judgment.[93]The Local Authority opposes the publication of the judgment on a number of grounds. Taken directly from the Local Authority’s skeleton argument on the point of publication: “The following points are made in respect of not publishing the judgment:-• Publication is not necessary as a novel point of law or practice has not arisen.• Publication may lead to misunderstanding or unfair criticism of a local authority who acted fairly and in good faith and as the court put it ‘possibly over generously” but with a desire to ensure proper assessments were conducted of the parents in light of the fact that the mother was unwell and pregnant with a further child during proceedings and that the only other realistic option for the child was long term foster care.• The other parties and the court sanctioned and agreed with the proposed amended timetable at the IRH on 08.07.24 and therefore the blame for delay although acknowledged by the local authority doesn’t rest solely at the door of the local authority, nor did it act with any lack of integrity.• The potential public interest in the judgment in questionable given this case, it is submitted, is highly fact specific and the general principles of avoiding delay where possible are well known and established. Therefore publication of this specific judgment will not add substantially to any public understanding of the relevant principles or process. There has been recent High Court authority on the same issues, namely from Mrs Justice Henke having recently published a decision dealing with very similar issues which can be referred to in terms of specific “guidance” in Re F (A Child) (Future Welfare: Post-Adoption Contact: Unconscionable Delay) [2025] EWFC 13 which in turn refers to the decision of Mr Justice McDonald in London Borough of Enfield v E (Unconscionable Delay) [2024] EWFC 183. It is therefore submitted that although it is a matter if judicial discretion there are no compelling reasons in the public interest to publish the judgment in this case.• Any publication of course should properly anonymise the child and the professionals working in this case to prevent the identification of the child which is necessary to protect any professionals from any unfair criticism in this case given it was accepted by the court no fault lay at the door of the social work team involved. It is accepted from the approved judgment seen this is adequately dealt with.” 94. I have considered each of those points carefully. None of them weigh with any real force against the benefits of transparency. As per “Transparency in the Family Courts – Publication of Judgments – Practical Guidance” issued on 19 June 2024 by The President: “3.1 The starting point is the principle of open justice. It is generally in the public interest for judgments to be published, even where they arise from private proceedings, and even where there is no particular public interest in the individual case / judgment - subject to any countervailing Article 8 issues, which may justify some anonymisation but do not necessarily preclude publication entirely.” 95. As I have set out within the judgment itself, there is nothing “new” contained within it. It is specifically not “guidance”, nor is it intended to be. In fact, the purpose of publication would simply be to allow those with an interest to read what can happen when the issue of delay is not given sufficient consideration within the sort of case which regularly comes before the Family Court. The publication of this judgment is in no way a ‘punishment’ designed to mark the court’s disapproval of the conduct of this Local Authority. The submission made by the Local Authority that “the blame for delay although acknowledged by the local authority doesn’t rest solely at the door of the local authority, nor did it act with any lack of integrity” is clearly factually correct but is entirely irrelevant to the question of whether to publish the judgment or not. Whilst it appears that the Local Authority have taken the suggestion of publication of this judgment squarely as some sort of ‘attack’ on them or their conduct within these proceedings, that is clearly not the case. The approach of the Local Authority in that regard is unfortunate, particularly in the modern era where the benefits of transparency within the Family Court are well known. 96. I have reminded myself of the words of The President in October 2021 within “Confidence and Confidentiality: Transparency in the Family Courts”: “Transparency: why is the issue important? 5. Every day the judges and magistrates in the Family Court in England and Wales, sitting in some 45 localities, hear cases which affect the most personal, and often the most important, aspects of an individual’s life. The caseload volume is immense, the Family Court Quarterly Statistics record a total caseload of 224,902 in 2020. All of this activity is undertaken within the law and on behalf of society at large, which has a strong legitimate interest in understanding the work of the court and knowing if it is being done well. Many of the decisions made in Family cases involve judges and magistrates exercising a degree of discretion and, in doing so, they are representing the social and other value judgments of society as to what is a fair or proper outcome in a dispute about family finances, or whether the State should remove a child into care, or what is the future course that best meets the welfare needs of a child. Again, it is legitimate for the public to know of these judgments, to provide a basis for trust in the soundness of the court’s approach and its decisions, or to establish a ground for concern in that regard. These, and other factors, establish that there is a significant and important public interest in our society having and maintaining confidence in the work of the Family Court. Conversely, a largely closed system, where the public are given no account of how the court operates, leads to accusations that this is ‘secret’ justice and that the approach of the court is unsound, unfair or downright wrong. Openness and accessibility to the work of the court may also enhance the ability for the system and those who work within it to learn and improve.” 97. I have borne in mind what is said by the Local Authority in their written submissions regarding publication, in particular that: “The local authority has taken on board learning points from this case and did raise through counsel at the hearing before the magistrates in 28.11.24 the concerns about where the timetable was now and the resulting delays in this case given the Mother’s continued non engagement. Specifically the local authority have taken on board the need to more proactively consider the need to review at each point whether a particular expert assessment still remains in fact “necessary” in accordance with the statutory framework. The local authority have also taken on board the ability of the local authority to undertake viability assessments of extended family or friends without delay, even if one parent objects, and to return the matter to court swifty if necessary for directions re disclosure.” 98. I am pleased that the Local Authority have recognised the need to take the “learning points” from these proceedings. The potential publication of this judgment would not be designed to make it more or less likely that the Local Authority take on board the concerns raised by me as to how this particular case progressed. Whether it were to be published or not, I would expect the Local Authority to have reflected on my judgment. The consideration as to whether to publish or not is not based on whether it will affect the Local Authority’s approach to the contents of it. Afterall, they already know what it contains. The point of publication would be to allow those who would not otherwise know about the judgment to gain an understanding, if they wish to, of the sort of case that is regularly heard within the Family Court and the impact of delay on that sort of case. 99. Having balanced articles 6 (right to a fair trial), 8 (right to a private and family life) and 10 (right to freedom of expression) of the European Convention on Human Rights, I am overwhelmingly satisfied that I should publish this judgment. There is no sustainable reason put forward by the Local Authority in opposition to publication. The fact that the child (through her guardian) and the father actively support the publication of the judgment, and the mother does not oppose publication, is relevant to my decision albeit, of course, not determinative of it. Whilst I understand the sensitivity of the Local Authority to any criticism at all, any critical comments contained within this judgment, both those aimed at the Local Authority and towards others including the court, are entirely justified in the context of these proceedings. It is important that those who wish to are able to understand better the decisions that are taken routinely by judges and magistrates sitting in the Family Court and the impact that delay in making decisions for children has on them. For those reasons, this anonymised version of the judgment shall be published. End of Judgment.