Z (A Child: Independent Social Work Assessment), Re [2014] EWHC 729 (Fam)

[2014] EWHC 729 (Fam)Case No LK12CO0530
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date 14 March 2014
LEICESTER DISTRICT REGISTRY
Before His Honour Judge Clifford Bellamy
Sitting as a Judge of the High Court
Re Z (A Child: Independent Social Work Assessment)
Mr Martin Kingerley for the Applicant local authority
Miss Joanne Ecob for the First Respondent mother
Miss Justine Lattimer for the Second Respondent father
Mr Brendan Roche for the Children’s Guardian
Between
Respondent motherRespondentRespondent fatherRespondent

Judgment handed down

[1]Leicester City Council (‘the local authority’) applies to the court for a care order and a placement order in respect of Z, a little girl now aged 2. The proceedings arose as a result of serious non-accidental injuries sustained by Z in September and October 2012. Her mother accepts that she caused those injuries.[2]The issues for determination at this hearing are, firstly, whether the evidence supports a finding sought by the local authority that Z’s father failed to recognise or respond appropriately to her injuries; secondly, whether I should allow the father’s application for an independent parenting assessment; and thirdly, if I do not grant the father’s application, whether it is appropriate, proportionate and in Z’s best welfare interests for the court to make the orders sought by the local authority.

The background

[3]Z’s mother is aged 32. The father is aged 24. They were born in different villages in the Punjab. Their first language is Punjabi. The mother speaks a little English; the father speaks hardly any.[4]The parents were married in 2009. In 2011 the mother came to the UK on a Tier 4 Student Visa, valid until August 2012. The father was also issued with a visa, in his case as a dependent of a Tier 4 student.[5]Shortly after their arrival in the UK the mother became pregnant. The mother kept all ante-natal appointments. Z was born a normal, healthy child. In the following days the Community Midwife made three home visits. The midwife speaks Punjabi and so was able to communicate effectively with the mother. There were no concerns about the parents’ care of their new baby.[6]Responsibility for oversight of Z passed from the Community Midwife to the Health Visitor service. The mother took Z to Baby Stay and Play sessions at the local Children’s Centre, to baby massage sessions and to Health Visitor drop-in sessions. There were no concerns about the family. The family needed no support other than that available by way of universal services.[7]On 30th August 2012 the mother took Z to the drop-in Child Health Clinic for a consultation with a Health Visitor. She reported that Z had a recent history of a high temperature and had been reluctant to feed for the preceding two days. She presented as a concerned parent and was seen to handle Z appropriately.[8]Mother drew the Health Visitor’s attention to a blue rash and red blotches on Z’s back. The Health Visitor requested a second opinion from a colleague. They decided that Z should be seen by a doctor. She was seen by a GP at the clinic. He noted, ‘Examination: looks well, several bluish lesions on back on midline and on both sides of vertebral column…Diagnosis: ???.??? bruises.’[9]On the evening of 11th October 2012 the parents took Z to the Leicester Royal Infirmary reporting her to be generally unwell and not feeding. Examination revealed multiple serious injuries. Z was admitted to the intensive care unit.[10]The next day the parents were arrested. They were later charged with causing grievous bodily harm contrary to s.20 of the Offences Against the Person Act 1861. They were both remanded in custody. By then the parents’ visas had expired. The UK Border Agency was notified.[11]On 5th November 2012 Z was discharged from hospital and placed in local authority foster care. She has now been in this placement for more than fifteen months.[12]The criminal trial began on 19th August 2013. On the first day of the hearing the mother changed her plea, pleading guilty to unlawful wounding. She was sentenced to a term of imprisonment of 30 months. The combined effect of the time spent on remand and her entitlement to remission meant that she was released from prison on 24th December 2013. She was immediately deported back to India. She now lives with her family in the Punjab.[13]In light of the mother’s belated guilty plea the Crown Prosecution Service decided not to pursue any of the charges against the father. It is accepted that he is not the perpetrator of any of Z’s many injuries. He spent ten months in prison on remand for offences he did not commit.[14]After the parents’ visas expired in August 2012 their status became that of overstayers. It was because of this that even when the criminal charges against the father were dropped he continued to be remanded in custody. It was not until 8th October 2013 that the father was released on bail in respect of immigration issues.

The litigation history

[15]In November 2011 the Family Justice Review published its final report. One of its recommendations was that there should be a statutory requirement that public law Children Act proceedings should be completed within 6 months. That recommendation is now reflected in the provisions of the Children and Families Bill, currently before Parliament and in the revised Public Law Outline which has been piloted since 1st July 2013. The proceedings relating to Z were issued on 25th October 2012. They have now been ongoing for 72 weeks. That calls for an explanation.[16]At the time these proceedings were issued both parents not only denied responsibility for causing Z’s injuries but did not accept that the injuries were non-accidental injuries. Permission was granted for the parties to obtain expert medical evidence from a consultant neuroradiologist, a consultant paediatric radiologist, a consultant paediatric haematologist, a consultant paediatric ophthalmologist and a consultant paediatrician. In light of the potential complexity of the expert medical evidence the proceedings were transferred to the High Court.[17]Directions were given by Mr Justice Coleridge on 15th March 2013. At that time it was believed that the criminal trial would be concluded by the end of June. The care proceedings were listed for a finding of fact hearing on 17th July. The criminal trial was subsequently put back until 19th August. The finding of fact hearing was vacated and re-listed on 15th October.[18]In light of the mother’s plea of guilty, the finding of fact hearing became unnecessary. The hearing on 15th October took the form of a case management hearing. The father had been released from prison a week before that hearing. Holman J ordered that the father should confirm to the local authority by 30th October whether he wished to put himself forward as a long term carer for Z. In the event that the father indicated that that was his position the local authority was required to serve an assessment plan to include proposals for contact. The assessment was to be served by 8th January.[19]The final case management direction given by Holman J was that the case be listed before me for final hearing beginning on 24th February 2014.

Z’s injuries

[20]Z sustained serious head injuries comprising a left parietal skull fracture, left sided scalp swelling, patches of probable hypoxic-ischaemic brain injury, very shallow acute traumatic subdural effusions over each frontal region, and acute subdural blood over each side of the interhemispheric fissure. She also suffered numerous retinal haemorrhages to both eyes.[21]Z also sustained multiple fractures. These included fractures of her left 2nd, 7th 8th, 11th and 12th ribs, a fracture of her left proximal humeral metaphysis, a buckle fracture of her distal humerus, a transverse fracture of the mid-shaft of her left ulna, an incomplete fracture of the left radial neck, a fracture of her right distal femoral metaphysis, fractures of her right distal tibia and fibula metaphyses and of her right proximal tibia and fibula metaphyses. X-rays also revealed a probable healed fracture of her right proximal tibial shaft and subperiostal new bone formation around her right tibia and fibula shafts.[22]Finally, Z sustained multiple bruising including bruising to both the right and left side of her jaw, to her left eye, to the left side of her chest over her 8th rib, to her left anterior superior iliac spine and to her right lateral and right medial malleolus.[23]The expert medical evidence is to the effect that these injuries are the result of at least four separate incidents spanning a period from possibly as early as mid August 2012 up to 11th October 2012, the day of her admission to hospital. The medical evidence is unanimous that all of these injuries are non-accidental.

Threshold

[24]The local authority’s final threshold document asserts that the mother caused all of the injuries sustained by Z as described above. The mother responds to this by saying that she, ‘does not oppose this Threshold finding and acknowledges she caused the fracture to the skull and resultant damage to the brain on 11 October 2012 by means of a shaking head injury, having been caused by a loss of control. All resultant injuries on that date are her responsibility. The First Respondent does not admit knowingly causing the fractures and did not deliberately cause any such injury but admits rigorous massage of the baby. The First Respondent accepts a developing sense of difficulty in caring for an increasingly fractious child.’[25]On behalf of the children’s guardian, Mr Roche submits that that formulation is somewhat opaque so far as the fractures and bruising are concerned. It is appropriate to refer to the sentencing remarks of the trial judge. His Honour Judge Head said, ‘I know that your basis of plea says you do not admit knowingly causing those other injuries. I proceed on the basis that what you did on 11th October was indeed the result of a loss of self-control by you; that this was not the first time you had lost your self-control as a result of which the other injuries had been caused by you but I emphasise without knowing you had and still less, of course, intending them…The inescapable conclusion is that all those injuries to a previously healthy baby were caused by you on different occasions through those previous episodes of escalating loss of control because you could not cope, causing injuries you neither intended nor appreciated had happened…’[26]On behalf of the mother, Miss Ecob dispelled any remaining doubt by indicating that the mother accepts that she caused all of Z’s injuries.[27]That alone is plainly sufficient to satisfy the threshold set by s.31(2) Children Act 1989. However, in its final threshold document the local authority seeks two findings against the father in these terns:
‘12. The Second Respondent father (as would have been expected of a reasonable parent) failed to seek timely medical attention for Z despite being aware of swelling to her leg and a bruise to her back. 13. Further, the Second Respondent father, as a parent whom had care of Z from time to time, failed to recognise, appropriately respond to or enquire about her ongoing discomfort and/or pain as would have been evidence to him and expected of a reasonable parent.’
[28]Before I consider the evidence relating to those issues I first remind myself that it is the local authority which seeks those findings. The burden of proving the allegations therefore rests upon the local authority. The standard of proof is the civil standard, that is the balance of probability. The balance of probability standard as it applies to family proceedings was clarified by the House of Lords in In Re B (Children)(Fc) [2008] UKHL 35. Baroness Hale said, ‘70. …I would…announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less…’[29]With respect to the first of the local authority’s proposed findings (paragraph 12 of the threshold document) the father accepts that he was aware of the bruise to Z’s back, seen by two health visitors and a GP on 30th August 2012. The first account the father gave of this was in his police interview on 12th October 2012. Asked whether Z had had any medical problems in the past he replied, ‘Once she had a bruise on her hip and we had to go to the doctors…’ Later in the interview he spoke of seeing a bruise ‘on her right side at the back on her back’. In cross-examination of the father Mr Kingerley, for the local authority, suggested to him that these may have been two separate bruises. I am satisfied that they were not. I find that the father was speaking about the same bruise. The difference between ‘hip’ and ‘back’ is easily explainable given that the father was responding to police questions with the assistance of an interpreter.[30]Did the father fail to seek timely medical attention? As I noted earlier, the mother took Z to the clinic to be seen by a health visitor on 30th August. In the event, the bruise was seen by two health visitors and a GP. None of them reported their concerns to social services. The mother told the father that the doctor had told her that the bruising may have been caused by her holding Z too tightly around the waist whilst changing her nappy. Given that the mother had sought medical advice, what more should the father have done? Should he have overridden the doctor and made his own referral to social services? Should he have sought another medical opinion? The answer to both of those questions, in my judgment, is ‘no’. He was entitled to take the level of concern of health care professionals as the yardstick by which to determine what more, if anything, he himself needed to do.[31]As for the swelling to Z’s right leg, once again the father’s first account of this episode appears is in his police interview. He was unable to say exactly when this had happened but he thought it was within one or two days of Z’s admission to hospital. He told the police that the mother had drawn this swelling to his attention. She regularly massaged Z. He thought she may have done this too vigorously causing swelling: Q: Your wife told you about this but tell me did you look at the leg yourself? A: Yes Q: And what was your opinion of it? A: I didn’t think that it was quite serious I thought it was because she might have done it [i.e. massaging] a bit hard and that’s what happened… Q: Did you seek any medical attention for the leg? A: Because we didn’t think that it was so serious that’s why we didn’t go to seek for the advice.[32]The father’s evidence is that by the next day the swelling had gone down. Was it unreasonable to wait until the next day before deciding whether it was necessary to seek medical attention? I shall defer answering that question until I have considered the second finding sought against the father (paragraph 13 of the threshold document).[33]The expert medical evidence is to the effect that all of the bruising is likely to have been less than 48 hours old as at 12th October (though the possibility that all or some of the bruising may have been older cannot be excluded). The fractures were sustained over a much longer period. To illustrate, the medical evidence is that whereas the fractures to the posterior aspect of the left 11th and 12th ribs are likely to have occurred between 30th August and 13th September, the fractures to the lateral aspect of the left 2nd, 7th and 8th ribs are likely to have occurred between 20th September and 4th October and the fracture of the left proximal humeral metaphysis is likely to have occurred between 13th and 27th September.[34]The question that always arises in respect of injuries such as these is whether someone who was not present at the time the injuries were caused but who had contact with the child in the following hours and days should have been concerned that the child had been injured and was in need of medical attention. In this case, the evidence of Dr Patrick Cartlidge, consultant paediatrician, is that with respect to all but four of the fractures, someone not witnessing the causative event would have realised that Z was distressed but is unlikely to have appreciated that she had been injured. However, with respect to the buckle fracture of the right distal humerus, the transverse fracture of the left ulna shaft, the incomplete fracture of the left radial neck and the probable healed fracture of the right proximal tibial shaft, ‘someone not witnessing the causal events would have realised that Z was distressed and had reduced limb movement. This would have caused a reasonable carer to seek medical advice’.[35]The father says that at the relevant time he was working long hours in two jobs, one at a hosiery factory and the other as a gardener. Although he did have some involvement in Z’s care he spent considerably less time with and caring for Z than did the mother. He did not notice reduced limb movement and saw nothing that made him think that Z needed medical assistance.[36]In his police interview the father made comments which raise some questions. He told the police that it is customary in India for parents to massage their babies. Z was regularly massaged by her mother: Q: So if he could talk to me about what made them go to massage, who basically gave them advice to do it, etc? A: All the babies in India they have the massage at home. She used to sit down and talk, and you know play and crawl. When you pick the child up and try to stand her up. Sometimes she doesn’t touch the legs and she used to pick the legs up. Because that’s why we was worried that we are not doing the massage correctly. And that’s the reason she’s not standing properly. Q: Sorry just to clarify, you said that you do baby massage, was that as a result of what you thought was a problem with your daughter or is it just something that you’ll always do? A: We do it usually in our culture… A little later in the interview there was a further exchange about the problem with Z’s legs: Q: But you spoke briefly earlier about the fact that your daughter appeared to be lifting her legs up and tell me again what your concerns were and what you did about that? A: As in India they normally tell you that the child in this age will do this, and child in this age will do that. She was moving her legs but she wasn’t doing as she should be doing… Q: And the bruise again was to which part of her body? A: The day before yesterday she did the massage on her, she did the massage with the Hair care oil, I don’t know what happened on her, but there was something happened and you tell me this. Then it was gone first red and then it had gone blue…[37]As I noted earlier, this interview took place with the assistance of an interpreter. As one reads through the transcript of the interview it is difficult to resist the conclusion that something was being lost in translation. However, having expressed that note of caution, the father does appear to be describing not just something abnormal with the leg itself (‘it was gone first red and then it had gone blue’) but also with the way Z was moving her leg.[38]Whilst I accept that the father’s involvement in Z’s care was very much less than the mother’s, it is not the case that the father did not handle Z at all during the six week period prior to her admission to hospital. He handled her on a daily basis. This included, on a regular if not daily basis, dressing and undressing her and changing her nappy. Given what the father says he observed and what Dr Cartlidge says he should have observed, should the father have appreciated that Z needed medical assistance?[39]In the wake of the very serious head injury which led to Z’s admission to hospital, Leicester Safeguarding Children Board set up a Serious Case Review. The report of this review was published on 3rd February 2014. It makes some important points concerning the level of contact medical professionals had with Z during the period between her presentation with a bruise to her back on 30th August 2012 and her admission to hospital on 11th October.[40]Instead of raising safeguarding concerns on 30th August the GP had asked the mother to bring Z back for a review on 4th September. She didn’t. However, the report notes that the mother, “did bring the baby for consultation on 10.9.12…On this occasion they saw another GP…On examination, there were no signs of the marks [i.e. the bruising to the back] and therefore the GP did not suspect non-accidental injury…The original GP saw mother and child again on 17.9.12 by a requested appointment and, again, there were no marks other than some dry skin; the baby seemed well. Similarly, a further GP consultation was arranged for 1.10.12 and again mother and baby seemed well. Advice was given to maintain contact with the Health Visitor.”[41]The Review concluded that the actions of the health visitors and GP on 30th August were the first of seven ‘missed opportunities’. The Review concluded that, “Following the baby’s urgent GP appointment on 30.8.12 the GP and the Health Visitor did communicate. This was good practice. However, in the series of missed opportunities described…above, their communication failed to elicit a critical discussion and thus the required outcome of a referral to children’s Social Care was not considered. There was a lack of professional curiosity and also a lack of triangulating information on the part of the health Visitors, GPs and Practice Teacher.”[42]The importance of the GP consultations on 10th and 17th September and on 1st October is obvious. It is clear from the expert medical evidence that on those three occasions when a GP saw Z between 10th September and 1st October, Z had sustained multiple fractures and yet the GP did not notice. This could be an indicator of negligence by the GP. In light of the criticisms made in the report of the Serious Case Review, that is entirely possible. However, it could also be evidence that the expert evidence that a person absent when fractures were sustained should have been able to read the signs (reduced limb movement) and should have appreciated that something serious had happened to that child is stated too confidently.[43]It is not unheard of for a health care professional not to notice something which a medical expert says should be apparent. In Re C and D (Photographs of Injuries) [2011] 1 FLR p.990 at paragraphs 256 to 258, I made the point that, “The radiological evidence that the fracture must have been sustained at some point between 20th and 27th July is not disputed…The radiological evidence as to the 'signs' of such a fracture has been as confidently stated in this case as in other similar cases I have dealt with...It could be that what has hitherto been so confidently stated by paediatric radiologists as near-certainty is, in reality, much less certain.” The same point applies as much to paediatricians as to paediatric radiologists. And if a health care professional can miss such signs then it must also be possible for a parent – even a ‘reasonable parent’ to miss such signs.[44]In this case Z’s injuries were sustained not on a single occasion but on several occasions over a period of some six weeks. I am satisfied that throughout the whole of that period the father handled Z daily including, on occasions, dressing and undressing her and changing her nappy. Three of the four fractures which would have led to reduced limb movement occurred between 26th September and 3rd October. On balance, with respect to those three fractures I am satisfied that the evidence supports a finding that the father ‘failed to recognise, appropriately respond to or enquire about her ongoing discomfort and/or pain as would have been evident to him and expected of a reasonable parent.’ With respect to the swelling to Z’s leg I also find that the father ‘failed to seek timely medical attention’ as contended by the local authority at paragraph 12 of its threshold document.[45]Before I leave threshold issues there are two further matters I must deal with. The first arises from comments made by the father in his police interview. The father told the police that on the night he had seen the swelling to Z’s right leg he had also seen a mark on her forehead: Q: Did you notice any other injuries on your daughter that night? A: The other thing I have noticed is the oil infection on her. Q: Oil infection where? A: It was on her forehead and it was near the you know like in this area and it was under her cheekbone… Q: And tell me when you saw an ‘oil infection’, what do you mean by this? It became clear that the ‘oil’ was the oil used by the mother to massage Z. The father went on to describe a ‘reddish area…like some sort of rash…’[46]It is not clear whether the father is describing an injury, though I note that in his oral evidence he said ‘I now think this was probably a bruise’. Although this issue was explored in some detail by Mr Kingerley, in its final threshold document the local authority does not seek any finding in respect of this issue. I consider this issue to be further evidence of the father’s failure to respond appropriately to his concerns.[47]The second issue relates to the state of the parents home as observed by the police on 12th October 2012. In a witness statement by PC 2870 Dave Adams dated 12th October he describes the state of the house and summarises his comments by observing that, ‘The general state of the house raised concerns due to its cleanliness and lack of child provision.’ During the course of the father’s evidence this issue, too, was explored in considerable detail The father accepted some of these concerns and agreed that the state of his home was not acceptable.[48]With respect to the concerns about the state of the house I make two points. Firstly, in its threshold document the local authority seeks no findings arising from the police officer’s evidence. Although in the light of the father’s acceptance of the police officer’s evidence I accept that on the 12th October there were concerns about the state of the property I am not persuaded that they are of any great significance in the context of the decisions I have to make. In arriving at that conclusion I have in mind, secondly, that the report of the Serious Case Review notes that up to 30th August 2012 (the date when Z was seen by two health visitors and a GP with bruising to her back) Z had been seen and weighed 7 times including 3 home visits by a health visitor and a community nursery nurse. The health professionals who visited the home do not appear to have expressed any concerns about the state of the home. The evidence of PC Adams does not justify a conclusion that the father could not be relied upon to maintain a home to a good enough standard in which to care for a vulnerable child with the range of medical needs which Z has.

Z’s present condition

[49]The effects of the injuries Z sustained are profound.[50]Z has a range of neurological problems. These include weakness on the left side of her body (hemiparesis). She is able to roll on her left side but finds rolling on her right side difficult. She is able to sit and is learning to sit up from a lying down position. She has started to weight-bear for a few seconds. She undergoes physiotherapy. Z has a supported seating system at home and a specialised wheelchair for use outside. She also has a standing frame.[51]In the early days after sustaining the injuries Z experienced seizures. She continues to experience staring episodes once or twice a week. MRI scans have shown that her brain has shrunk on both sides, more so on the right.[52]As I noted earlier, Z sustained bilateral retinal haemorrhages. She now suffers significant visual problems. She has reasonable vision for close objects but her distance vision is poor. She is registered as a child with severe sight impairment.[53]Z has been unable to take food by mouth. For a while she was fed by means of a naso-gastric tube. In July 2013 she underwent surgery to have a feeding device (a gastrostomy) inserted into her stomach. She is fed through the gastrostomy three times a day. She has water flushes through the gastrostomy in between feeds.[54]Z is able to respond with smiles and to vocalise. She recognises familiar voices and shows excitement. She has delay in her communication skills and has been referred to a speech and language therapist and to an educational psychologist. At present her speech consists of ‘hi-ya’, ‘mamma’ and ‘dadda’.[55]Z’s treating consultant paediatrician, Dr Kulkarni, has expressed the opinion that Z’s difficulties ‘are likely to be permanent and she will continue to need multi-agency support on a long-term basis…’.

Z’s present care

[56]Upon discharge from hospital Z was placed in foster care. Her foster carer, FC, is approved as a short term foster carer. She is registered to care for a maximum of 3 children, one child to be in the age range 0 to 1 year and two children in the age range 2 to 5. There were two other children in placement at the time Z was placed. Those two children subsequently moved on and two more children were placed. Those two children have recently left. It is highly likely that other children will be placed with FC in the future.[57]Z is an Indian child born of Indian parents. FC is a single white English woman. Notwithstanding the fact that the placement is not a cultural match, it is common ground that this has been a very good placement for Z. FC is highly motivated to acquire and develop the skills needed to care for Z. She has been trained to carry out physiotherapy. She has also been trained to feed Z through her gastrostomy and to carry out the necessary regular water flushes. She ensures that Z keeps all of her health care appointments. There is evidence of good attachment between Z and FC.[58]FC has very helpfully provided a typical day for Z. From waking between 6.30am and 7.30am and going to bed between 7.00pm and 7.30pm the day is a constant round of feeding, cleaning the gastrostomy, physiotherapy, giving Z time in her standing frame and play. In addition there are regular visits by and to professionals. During the night-time Z wakes on average 3 times a night, every night. She is awake for between 30 and 60 minutes. She may either wake screaming or wake calm. Whichever is the case, she needs cuddles in order to be able to get back to sleep.[59]The father accepts that FC has cared for Z to a high standard.[60]FC has expressed an interest – indeed, that may not be a strong enough word – in caring for Z on a long term basis. According to the social worker, FC has said that she cannot imagine life without Z. Although she has indicated that she would like to adopt Z the case holding social worker was clear that FC is more concerned about being able to care for Z long term than about the legal basis under which she provides that care. She was equally clear that FC would support any ongoing contact ordered by the court.[61]A report from the local authority’s Early Support service sets out the range of support currently being provided for Z. This includes input from an early years nursery nurse, an early years support teacher, the Educational Psychology Service, the Speech and Language Therapy Service, a dietician, a community children’s nurse, an occupational health worker, a physiotherapist, together with regular reviews by her consultant paediatrician, Dr Kulkarni, and a consultant ophthalmologist.[62]Since his release from prison the father has not been invited to any meetings with any of the range of professionals involved in Z’s care. The social worker says that the reason for this is because most of these meetings take place at FC’s home and it is not, therefore, appropriate for the father to be invited.

Contact

[63]Since the father was released from prison arrangements have been made for him to have contact with Z. Contact is set at a very modest level – one hour twice a week.[64]The hearing bundle contains contact notes covering a three month period. The notes show that the father has been completely reliable in taking up the contact on offer. He arrives early. He prepares appropriately for his time with Z. During this limited contact the father has demonstrated that he is able to take advice, learn and put that advice into practice. The consequence is that contact is a very positive experience both for Z and for the father. He is building a good relationship with Z, one which she appears to enjoy.[65]The social worker accepts that the father has taken on board advice and information; that the contact notes demonstrate that the father is teachable; and that there is evidence of good emotional warmth. She made the point that Z is quite a responsive child and that it is possible to pick up on her cues quite easily. The father does pick up on her cues. The social worker accepts that contact is a very positive experience for Z.

Social work assessment

[66]At the hearing on 15th October 2013, Holman J ordered the local authority to file and serve an assessment plan ‘of work to be undertaken with the father’. The assessment plan proposed a total of six weekly sessions between the father and the allocated social worker, RD. Those sessions took place between 13th November and 18th December. Each session lasted between an hour and a half and two hours. The father attended each session. He was fully cooperative. He was assisted by an interpreter at each session.[67]The social worker was at pains to point out that this was a social work assessment and not a parenting assessment. In her oral evidence she said that it had been intended that if the social work assessment was positive then that would have been followed by a parenting assessment. That was not made clear in the local authority’s assessment plan.[68]The social worker’s assessment report identifies a number of concerns. The first of these relates to the father’s immigration status. He is an overstayer. RD notes that whether he is able to remain living in the UK is dependent on the outcome of these proceedings. The father told her that he expected that once these proceedings have been concluded he will have to return to India. During the assessment it was not entirely clear whether the father wanted to return to India (i.e. whether that was his primary position) or whether he was resigned to the risk that the immigration authorities would require him to return. This is another issue in the case in which it is possible that something has been lost in translation.[69]The next issue arises from the first and relates to finance. As an overstayer the father is not allowed to work. His finances are extremely modest and not sufficient to enable him to support both himself and Z. In relative terms, his family in India appear to live quite comfortably. It is clear that in reflecting on his position the father realises that, at the moment, he would be financially better off living in India than in the UK. RD notes that the father ‘stated that he is unable to stay in the UK as he has no money but if he returns to India, then he will not have any financial problems’.[70]The father gave RD the impression that if he were to return to India there is a risk that the mother and her family will bring court proceedings in India seeking the equivalent of a residence order. There are also significant uncertainties around the proposals for Z’s care were she to live with the father and his family in India, not least in terms of the health care that would be available to meet Z’s complex health needs.[71]Above all of these factors RD’s overriding concern relates to the father’s lack of understanding of and insight into the extent of Z’s disabilities and her complex needs arising from those disabilities. She says that whilst the father was in prison he was provided with a lot of information concerning Z’s disabilities and her health needs. Although she acknowledges that the father has not been invited to attend any of Z’s medical appointments she is nonetheless concerned that the father ‘has very limited understanding of Z’s disabilities, the impact of those disabilities on her day to day life and on her long term needs’. RD was left with the impression that the father believes that Z ‘will recover really well’ and that with the right treatment she will in time ‘recover and become a normal child’ whereas the medical evidence suggests the very opposite.[72]The father is a religious man. He has faith that God will intervene to bring about healing. RD clearly found this disquieting. In her assessment she records that, “[The father] explained to me that he has seen a video on ‘YouTube’ which showed an American man with bone cancer going to the Golden Temple (which [the father] informed me was the main religious Temple in the Punjab for Sikhs) and he was cured of his bone cancer. [The father] explained that his religion and faith are very important to him, he has strong religious faith that Z will get better, he stated that Doctors have their place but so does religion and the hope that Z will get better. [The father] explained that with prayers that Z’s difficulties can be taken away. It is ‘God’s Will’ that Z survived the injuries and if God wants her to be better then she will be whilst also seeking medical treatment.” RD goes on to make the point that whilst the father has ‘spoken of the importance of having hope and trust in God to make Z “normal”, this is at odds with the extensive medical advice that Z will have a real level of disability throughout her life. Although RD appeared to accept that it is not unusual for people of faith to hope for divine intervention I was left with the impression that she considers the father’s religious beliefs to be irrational and troubling.[73]RD’s assessment was not wholly negative. She notes the positive feedback from the contact supervisors. The father has insight into issues around Z’s safety. He is able to stimulate her in play. He is very affectionate towards her and shows good emotional warmth. He has good insight into the need for stability and of the need for consistency. However, RD told me that she does not believe the father could transfer these skills into full-time care. It was clear that she arrived at that conclusion based on the father’s lack of understanding, lack of insight and failure to acknowledge Z’s vulnerability and the challenges which arise from caring for her.[74]RD accepted that her assessment had been based on the father’s plan to return to India. As a result, they had not discussed what support would be available to him were he to remain in the UK. She agreed that if the father were caring for Z in the UK then the range of professional support currently in place would continue. It is possible that in those circumstances some support may also be provided from the local authority’s Disabled Children’s Team. RD accepted that the local authority’s enquires suggest that if Z were placed in her father’s care then it is likely that he would be granted indefinite leave to remain in the UK.[75]Overall, the social work assessment was negative. RD told me that if her assessment had been positive then the local authority would have considered extending contact and undertaking a full parenting assessment. However, as her assessment was negative no parenting assessment has been undertaken and there are no plans to extend contact.

Looked After Children Reviews

[76]Z is subject to six monthly (Looked After Children (‘LAC’) reviews. The last LAC review took place on 12th December. At the time of that review the social work assessment of the father was incomplete. Five sessions had taken place. The sixth session was due to take place on 18th December.[77]The minutes of the LAC review held on 12th December note that, ‘Social Worker RD is carrying out 6 assessment sessions with [the father] 5 have been completed. The assessment is negative. He denies any knowledge of the injuries or reasons she was harmed, he has very limited understanding of her health and overall prognosis. He does not understand the impact of the brain damage. He has no clear plan – originally he said his mother would help out in India, then his sister. It is assessed he is not considering Z’s best interests. All professionals shared these concerns. Becky will inform [the father] of the outcome of the assessment and will file the statement by 8.1.14.’[78]Although the father attended the LAC review he was not permitted to be present throughout the whole of the discussions. He was not present when RD told the meeting that her assessment of him was negative. He was not present when the decision was taken that the local authority’s plan for Z should be one of adoption.[79]The minutes of the LAC review have little to say about contact: ’Supervised contact takes place twice a week during the assessment period. Z has been fine before and after contact’. If that is an accurate reflection of the information given to the members of the LAC review then it is woefully lacking. The social worker said that she ‘was not asked’ to provide the Review with evidence relating to contact. Given that contact was extremely positive for Z one would have expected the LAC review to have been informed of this and that it would have considered how contact might develop. This is a requirement of the Care Planning Placement and Case Review (England) Regulations 2010 [‘the Regulations’]. Schedule 7 sets out the considerations to which the responsible authority must have regard when reviewing a child’s case. Schedule 7 paragraph 4 requires the LAC review to consider ‘The arrangements for contact and whether there is any need for changes to the arrangements in order to promote contact between [the child and her parents].’[80]The social worker was asked whether the minutes of the LAC review provided an accurate summary of what was discussed. She confirmed that they do, though she went on to describe them as ‘brief’. The minutes have been signed by the Independent Reviewing Officer. There is space for them to be counter-signed by the social worker. In this case the social worker confirmed that the minutes had been sent to her for approval and signing. She had not responded. She has not signed them. She said that she does not routinely sign minutes of LAC meetings.[81]LAC meetings are very important meetings. That that is so is made very clear by the Regulations. The records of such meetings are also important. Regulation 38 provides that, “The responsible authority must ensure that a written record of the review is prepared, and that the information obtained in the course of the review, details of proceedings at the review meeting, and any decision made in the course of, or as a result, of the review are included in C’s case records.”[82]It should be apparent from the minutes of a LAC meeting that the meeting has considered each of the matters which the Regulations require the meeting to consider. The minutes should be balanced. So far as the parents’ relationship with the child is concerned, they should identify any positive points as well as any negative points. Although there is no requirement in the regulations for minutes to be signed, as a matter of good practice it is clearly appropriate that they should be signed. They should be signed by the Independent Reviewing Officer and by the allocated social worker, if present at the meeting, and if not present then by the most senior social worker present at the meeting. Their signatures provide the assurance that the minutes give an accurate and balanced account of the matters discussed at the meeting.

Consideration of potential kinship carers

[83]The social worker’s first statement dated 14th February 2013 outlines the steps the local authority has taken to consider alternative kinship carers for Z. The local authority concluded that there were no viable options. Since February 2013 the local authority has carried out no further enquiries and given no further consideration to the possibility of placement of Z within her wider birth family.[84]Those potential kinship carers who were considered by the local authority include maternal great aunt and uncle living in Coventry, two cousins living in Canada and both sets of grandparents living in the Punjab. I am satisfied on the evidence that the local authority was right to rule out most of these family members whose interest and commitment appears, at best, to have been equivocal. However, I do have concerns about the local authority’s screening (it cannot in truth be called a viability assessment) of paternal grandmother (‘PGM’).[85]The screening of PGM took the form of a telephone conversation on 17th December 2012 followed up by a letter dated 21st December and a further telephone conversation on 18th January 2013. The first telephone conversation was a three-way conversation between RD, a social worker from the kinship fostering team, Mrs Foster, and PGM. Mrs Foster speaks Hindi and was able to communicate with PGM.[86]This telephone conversation appears to have been unplanned in the sense that the call was not pre-arranged and no information had been provided to PGM in advance of the call. As a result of that call RD and Mrs Foster were concerned at PGM’s lack of understanding of the seriousness of Z’s injuries and their impact on her care needs, about the difficulty she appeared to have in contemplating that either parent might have caused the injuries and about the difficulty she had in accepting that the parents should not have contact with Z.[87]This first contact was followed up by a letter, translated into Punjabi. There was then a second telephone call, this time with the assistance of a Punjabi interpreter. Although PGM still had difficulty contemplating the possibility that one of the parents may have caused Z’s injuries RD’s statement gives the impression that in this second telephone conversation PGM showed that she was beginning to understand the seriousness of Z’s injuries.[88]PGM subsequently wrote to the local authority on 1st March 2013 re-affirming her wish to be able to care for Z. The local authority remained unmoved. In a reply dated 22nd May, RD told PGM that ‘the Local Authority will not be considering you any further as a carer for Z’.[89]The following paragraph from RD’s statement is key to understanding the local authority’s decision not to pursue a more detailed assessment of PGM:
‘I am of the opinion that the relatives in the Punjab are unable to offer a viable and permanent home to Z. Due to the injuries that Z has sustained and the impact of these, Z currently requires a significant amount of care from her foster carer, medical staff and community-based health professionals. Based on the current assessment of Z’s physical and cognitive disabilities, it is likely that she will require this significant level of care throughout her life and I am concerned about the facilities in the Punjab region where both sets of grandparents live. I have discussed this issue with Shila (sic) Foster in the kinship team who has personal experience of the region in the Punjab where the grandparents live. She has indicated that there would be limited healthcare and educational facilities for a child with Z’s difficulties. Furthermore, she has raised reservations about how a child with Z’s difficulties may be viewed culturally.’

The final care plan

[90]The local authority’s final care plan is dated 8th January 2014. It proposes permanency by way of adoption and, more specifically, adoption by the current foster carer.[91]The local authority’s final care plan states that its adoption service, ‘has advised that it is highly unlikely that in a national search of adopters, that there would be a family who would be willing to adopt Z due to her disabilities and level of care needs but have also indicated that there are unlikely to be any difficulties in the current foster carer being approved as an adoptive parent for Z.’[92]That last point does not reflect a correct understanding of the role of the adoption panel. Regulation 30A(1) of the Adoption Agencies Regulations 2005 provides that, ‘Subject to paragraphs (2) and (3), the adoption panel must consider the case of the prospective adopter referred to it by the adoption agency and make a recommendation to the agency as to whether the prospective adopter is suitable to adopt a child’ (emphasis supplied)’ In this case the function of the adoption panel will be to consider whether FC is suitable to adopt any child and not whether she is suitable to adopt this child (i.e. Z). It would be unwise, therefore, to make assumptions about the outcome of FC’s application for approval as a prospective adopter. Should that application fail, the local authority’s contingency plan is that it ‘would seek an alternative adoptive placement and if one was not found, would seek a long term foster family for Z’. As I have already indicated, the care plan itself acknowledges that an open search for an adoptive family for Z is unlikely to bear fruit.[93]The social worker confirmed that the local authority’s planning in this case has been twin-track, the options under consideration being placement with the father or adoption. She considers that in light of the negative assessment of the father a placement order is required in order ‘to secure permanency’. In her oral evidence she told me that we (i.e. the local authority) “have always wanted adoption”.[94]As for contact, the final care plan acknowledges the current level of contact but does not comment on its quality or its benefits for Z. The care plan states that if a placement order is granted, ‘it is proposed that there is an exchange of letters once a year between Z and [the father], supported by the Local Authority adoption post box service. The Local Authority is not proposing any direct or indirect contact with other extended family members’.[95]Even if, as the local authority contends, it is appropriate to rule out the father as a long term carer for Z and for her to remain in the care of FC, it is clear that prior to this hearing no thought had been given, and no analysis undertaken, as to the appropriate order to be made. There has simply been an assumption that the appropriate order in those circumstances is an adoption order.[96]On 17th September 2013 the Court of Appeal handed down judgment in Re B-S (Children) [2013] EWCA Civ 1146. In those cases where the local authority’s final care plan proposes that a child be placed for adoption the judgment sets out in very clear terms the evidence which local authorities and children’s guardians must put before the court. Giving the judgment of the court, Sir James Munby P said that, ‘34. …there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:
“evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.”
The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:
“An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options”
. McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:
“the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family”
. We agree with all of this…’[97]In preparing their evidence for the court local authorities and children’s guardians should also have regard to approach the judge must take in evaluating that evidence and arriving at a properly reasoned judgment. In Re G (A Child) EWCA Civ 965 at paras 49-50 McFarlane LJ made the point, endorsed in Re B-S (Children), that, ‘In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option. The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.’[98]In this present case the local authority has not heeded the guidance given in Re B-S (Children). In what the social worker had intended should be her final witness statement, dated 8th January 2014, there was a complete absence of the kind of analysis required. At the pre-hearing review I directed the social worker to file a further statement containing the analysis required by Re B-S (Children). The social worker’s further statement, dated 19th February, goes a long way towards remedying the flaws in her earlier statement. However, even now the statement does not go far enough. In particular, even if the court were ultimately to conclude that Z should continue to be cared for by FC, it does not automatically follow that that should be pursuant to an adoption order. The options include long-term foster care, special guardianship order and residence order as well as adoption. Each of those are realistic options which need to be evaluated by means of the balance sheet approach set out in Re B-S (Children).[99]There also appears to have been no analysis of the issue of post-placement contact between the father and Z but merely an assumption that given the plan of adoption only letterbox contact is appropriate. That, too, should be considered in a balance sheet way, identifying and weighing against each other the positives for Z of ongoing contact with her father against the negatives of contact continuing. It is not clear either from the final care plan or from the local authority’s social work evidence that any such analysis has taken place.

Father’s position

[100]The father wishes to be assessed as a long-term carer for Z. If that should be negative he wishes to continue having direct contact with Z so that he can play a meaningful role in her life.[101]As I noted earlier, the father is an overstayer. His family have provided him with funds to enable him to pursue an application for leave to remain in the UK. He has been advised by his immigration solicitors that if Z were placed in his care his prospects of being granted leave to remain would be good. The local authority accepts that that is not the father’s motive for wishing to care for Z. His motives are solely to do with his love for Z and his wish to care for her.[102]The father’s current immigration status means that he is not permitted to work. That will continue to be the case unless and until such time as he is given permission to remain. Financially, life is very difficult for him at present.[103]At the time of his final written statement (24th January 2014) the father was still saying that his preference was to return to live in India. However, it is clear that his reasons for that were not so much based on a desire to return to India as upon an acceptance that he may not be allowed to continue living in the UK. He says, “This is my preference due to the fact that the financial and practical support would be more readily available. This having been said it is inaccurate to suggest that I would not remain in the UK if this was deemed a more appropriate option for my daughter.”[104]In his oral evidence the father was clear that he accepts it is better for Z to remain in the UK. He intends to remain in the UK (if permitted to do so) and wishes to be allowed to care for Z here.[105]I have already considered and made some of the findings sought by the local authority against the father. In addition to the concerns arising from those findings there are also concerns that the father has not been entirely truthful and open in the course of the investigations into the events leading up to Z’s injuries. Two illustrations will suffice.[106]The father’s position in these proceedings has been that his care of Z was minimal because he was working seven days a week. He told the police that he worked at a hosiery factory three days a week, ‘Then sometimes I go out to clean the gardens’. During the course of the social work assessment he told RD that he worked at the factory five days a week and that he had a second, evening, job in catering.[107]In his police interview the father was asked whether, in the previous two weeks, anybody else had looked after Z. He said ‘I don’t think so. She [the mother] is the one who does look after her’. During the social work assessment his told RD that there were times when the mother left Z in the care of child minders. In his oral evidence he admitted that he had lied to the police. He said he did not know why he had lied.

Father’s application for an independent social work assessment

[108]As a result of the negative outcome of the social work assessment, on 31st January 2014 the father issued an application for permission to instruct an independent social worker to undertake a parenting assessment. The father complains that the social worker ‘failed to approach the assessment with an open mind’ for which submission he relies on the fact that the social worker informed the LAC review on 12th December 2013 that the outcome of her assessment was negative even though the assessment was still ongoing.[109]The father seeks permission to instruct Surinder Kumari, a very experienced, Punjabi-speaking, independent social worker. At the time he issued his application the father wished to instruct Surinder Kumari ‘to undertake a parenting assessment both in the UK and in India’. He now accepts that if he is to care for Z it should be in England.

Children’s Guardian

[110]The children’s guardian is Vasanti Motivaras. Ms Motivaras supports the local authority’s plan for Z to be adopted by her foster carer. She speaks very positively of the care being provided by FC, whom she describes as ‘amazing’.[111]Noting that this placement is not a cultural match, the guardian commends FC for the steps she has taken to enable Z to experience her culture by taking her on visits to the local Sikh Temple, listening to music and songs in Punjabi and visiting Punjabi speaking friends. She is confident that Z’s cultural needs will continue to be met in this placement.[112]The guardian shares the social worker’s concerns about the father’s understanding of Z’s disabilities and needs, which she describes as ‘superficial’. His understanding and insight do not appear to have improved over time. She is concerned that the father “states that he was not aware of the injuries that were inflicted” on Z and about the fact that he has given different explanations to the police and to the local authority concerning the level of care he provided for Z in the weeks before her admission to hospital. He missed ‘huge cues’ into what was happening to her. He was not able to protect her against her mother. His failure to recognise and respond to what was happening to Z is, in her opinion, very serious.[113]The guardian is very clear that the father does not have the skills to look after Z either now or in the future. She comes to the conclusion that, ‘It is clear that Z has a complex set of disabilities and needs that require a high level of sensitivity, experience, expertise and protection that cannot be provided by [the father] even if he were to remain in the UK with the level of services that Z’s current carer receives. Given the current information before the Court (and based upon my own discussions with [him] I am persuaded that Z cannot be safely re-united with her father.’[114]Ms Motivaras is satisfied that the local authority’s assessment of the father is adequate and that further assessment is not necessary. She is also of the view that the local authority has obtained sufficient information to rule out the possibility of placement of Z with any members of her extended family.[115]Having set out, briefly, the arguments for and against both long term foster care and special guardianship, the guardian turns to the final alternative of adoption. She notes that adoption severs the relationship between a parent and a child and may cause identity issues for the child in later life. She goes on to set out the positives of adoption:
“However, research indicates that the outcomes for children that have been…adopted are generally more favourable as they have a sense of ‘belonging’ and a life-long commitment from the adoptive family. Problems and/or issues in relation to identity can to a degree, be addressed via letterbox contact with birth parents. The Local Authority have identified Z’s current carer wishes to adopt her; clearly this will provide continuity in the specialist care that Z needs and her attachments and bond with her carer will be maintained and indeed, will continue to grow and develop.”
[116]The guardian made the point that adoption offers a life-long commitment to Z and that in light of her disabilities a life-long commitment is exactly what Z needs. That said, the guardian also accepts that the nature and extent of Z’s disabilities are such that if FC were not approved as a prospective adopter it is unlikely that an alternative adoptive placement could be found.[117]In her written report the guardian had supported the local authority’s position that post adoption the father’s contact with Z should be restricted to letter box contact only. In her oral evidence she changed her position. She had observed contact on 10th December. She noted that Z appeared to be settled during that contact session and responded well to the attention that the father gave to her. She acknowledged that from her own observation of contact and from the contact supervisor’s reports it is clear that Z enjoys contact and that it is a positive experience for her.[118]The guardian made the point that the making of an adoption order does not necessarily mean that direct contact must come to an end. However, although she now supports ongoing direct contact, the lateness of her change of position on this issue meant that her thinking has not developed to the stage of being able to advise the court on the nature and extent of future direct contact. Analysis: The application for expert evidence The law

Analysis: The application for expert evidence

[119]The father seeks permission to instruct an independent social worker to undertake a parenting assessment. The court’s approach to that application is set out in Family Procedure Rules 2010 Part 25. Rule 25.1 provides that, ‘Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings’[120]The meaning of the word ‘necessary’ in this context was considered by the Court of Appeal in Re H-L (A child) [2013] EWCA Civ 655. Giving the leading judgment, Sir James Munby P said that. ‘3. The short answer is that 'necessary' means necessary. It is, after all, an ordinary English word. It is a familiar expression nowadays in family law, not least because of the central role it plays, for example, in Article 8 of the European Convention and the wider Strasbourg jurisprudence. If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent)[2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]. This court said it "has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable." In my judgment, that is the meaning, the connotation, the word 'necessary' has in rule 25.1.’[121]In addition to giving consideration to the question of whether the proposed expert evidence is ‘necessary’ the court must take account of the factors set out in rule 25.5 of which sub-paragraph (f) would seem to be of particular importance in this case:
‘the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings’
. The court must also have regard to the overriding objective set out in rule 1.1.[122]It is also important to have regard to the context in which determination of whether an expert’s report is ‘necessary’ is being made. On this issue it is appropriate to refer again to the decision of the Court of Appeal in Re B-S (Children). Making reference to the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria)[2013] UKSC 33, [2013] 1 WLR 1911, Sir James Munby P said this:
‘22. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215. 23. Behind all this there lies the well-established principle, derived from s 1(5) of the 1989 Act, read in conjunction with s 1(3)(g), and now similarly embodied in s 1(6) of the 2002 Act, that the court should adopt the 'least interventionist' approach. As Hale J, as she then was, said in Re O (Care or Supervision Order) [1996] 2 FLR 755, 760: “the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary.”… 25. Implicit in all this are three important points emphasised by Lord Neuberger in Re B. 26. First (Re B paras 77, 104), although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible. 27. Second (Re B para 77), as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision. As Lady Hale said (para 198) it is "necessary to explore and attempt alternative solutions". What are these options? That will depend upon the circumstances of the particular cases. They range, in principle, from the making of no order at one end of the spectrum to the making of an adoption order at the other. In between, there may be orders providing for the return of the child to the parent's care with the support of a family assistance order or subject to a supervision order or a care order; or the child may be placed with relatives under a residence order or a special guardianship order or in a foster placement under a care order; or the child may be placed with someone else, again under a residence order or a special guardianship order or in a foster placement under a care order. This is not an exhaustive list of the possibilities; wardship for example is another, as are placements in specialist residential or healthcare settings. Yet it can be seen that the possible list of options is long. We return to the implications of this below. 28. Third (Re B para 105), the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. So "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support”…’

Submissions

[123]In her social work assessment of the father RD concludes that the father lacks understanding of the nature and extent of Z’s injuries, of their probable life-long consequences and of the care needs that flow from this. On behalf of the father, Miss Lattimer criticises that assessment and says that it has been unfair. The background information provided to the father by the local authority has all been in English. Very little of it has been translated into Punjabi. Although some of this material has been read to the father using an interpreter, that is not as good as having the documents translated so that they can be read and re-read. The father has been given no opportunity to meet with any of the professionals caring for Z. Whilst that was understandable whilst he was in prison, there is no reason why the local authority should not have facilitated this following his release.[124]Miss Lattimer also criticises the local authority for its failure to provide the father with any training, for example with respect to feeding, carrying out water flushes of the gastrostomy, or providing physiotherapy, all of which training has been provided to the foster carer. The father has been given no opportunity to acquire and develop some of the skills necessary to be an appropriate carer for Z. Had he been provided with some of this basic training, and had the local authority permitted him to have more contact with Z, he would have had greater opportunity to demonstrate his ability to care for her.[125]It is plain from RD’s evidence that although ostensibly twin-tracking, from a very early stage the local authority’s preference has been for Z to be placed for adoption. Ms Lattimer submits that the social work assessment of the father was, in effect, nothing more than an exercise in ‘ruling out’ the father as opposed to a fair and open minded assessment of his potential to care. She goes on to submit that the assessment ‘provides an insufficient basis upon which any Court (properly directing itself in accordance with the guidance in re B-S) could dismiss the possibility of rehabilitation to Father and certainly no basis upon which to conclude that direct contact must be terminated.’[126]On behalf of the mother, Miss Ecob supports the father’s application for an independent social work assessment. She submits that the local authority and the guardian have both failed to apply the appropriate test to the question of possible rehabilitation to the father. They have wrongly measured the father’s likely care by assessing it against that of the foster carer instead of applying what Miss Ecob submits is the correct test, namely whether the father is capable of providing ‘good enough’ care, in the context of Z’s admittedly high level of needs, with support as necessary.[127]The local authority and the guardian both oppose the father’s application. For the local authority, Mr Kingerley accepts that the assessment undertaken by RD ‘was undertaken on the premise that it was the father’s intention to return to India’. She should not be criticised for that. The father had made it very clear that that was his intention.[128]Mr Kingerley goes on to acknowledge that ‘no efforts’ were made, either by the local authority or by the father’s solicitors, to translate the voluminous medical reports into Punjabi. Notwithstanding that important concession, the local authority still contends that the father lacks understanding and insight so far as Z’s injuries and health needs are concerned. On that issue the assessment has been thorough and the outcome clear. It is not necessary for there to be an assessment by an independent social worker.[129]The guardian supports that view. On behalf of the guardian, Mr Roche submits that the evidence of father’s past parenting is worrying, in particular his failure to notice that his wife was not coping and that Z had been injured on at least three or four occasions. Against that history, it was not unreasonable for the local authority to ask the father to demonstrate various aspects of his parenting ability. This was done in order to find out whether the father has the proactive energy and drive needed to look after Z. The signs are that he does not. Despite being in England for some three years he is still unable to speak English and this fact alone will make the very difficult task of looking after Z an altogether impossible one.

Discussion

[130]In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority’s decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.[131]Was RD’s assessment of the father fair, robust and thorough? In my judgment it was not. In arriving at that conclusion I bear the following factors in mind. They are not ranked in any particular[132]I am satisfied that the local authority’s assessment of this father falls short of the standard required. Even if, ultimately, a conclusion is reached that this father is unable to be his daughter’s primary carer (and on the basis of the present assessment I am not yet persuaded that that is necessarily the case) and that a long-term placement outside her birth family would be in Z’s best interests, the local authority’s assessment does not enable any conclusions to be arrived at as to the nature and extent of the role the father may be able to play in Z’s life. Such a role may be limited to infrequent supervised contact. It is also possible that it may be more extensive perhaps including unsupervised, and maybe even overnight, contact. If more extensive contact were appropriate is it possible that the father could be a respite carer? Is this completely fanciful? On the basis of the present assessment it is impossible to know. All that can be said is that the local authority’s planning in this case has been unimaginative and its assessment wholly inadequate. Given this child’s cultural needs – needs which will only be partially met in her current placement – a fair, robust and thorough assessment of the father may better enable decisions to be made that genuinely take account of Z’s global, holistic needs.

Conclusion

[133]The course I am proposing to take will lead to some further delay. That is regrettable. However, as Z is settled and well-cared for with FC and as it is the local authority’s intention that that placement should continue for the longer term, I am not persuaded that that delay will be to the detriment of Z’s welfare.[134]In this case not only am I concerned about the quality of the social work assessment of the father and, more generally, as to whether he has been treated fairly; I am also concerned about the quality of the local authority’s analysis of the options. In Re B-S (Children) the President made the point that, ‘49. We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.[135]I am satisfied that in the particular circumstances of this case a parenting assessment of the father by an independent social worker is ‘necessary’. That assessment should be undertaken on the basis that, if successful, the father would parent Z in England.

The final care plan

[136]My decision to allow the father’s application for leave to instruct an Independent Social Worker means that it is unnecessary and inappropriate, at this stage, to go on to consider the local authority’s final care plan. However, it is appropriate that I should make the point that it should not be assumed that if the assessment of the father is negative then that, without more, will lead to endorsement of the present final care plan. Even leaving to one side the local authority’s flawed assessment of the father, it is plain that the current final care plan is deficient. For example, it does not consider and analyse realistic alternatives to adoption (long term foster care, special guardianship); it does not consider whether it is appropriate for Z to remain in a placement in which there is a changing population of children in short term foster care; it assumes that post-adoption letter-box contact is appropriate without making any attempt to consider whether ongoing direct contact would better meet Z’s needs; it proposes by way of contingency plan that if the placement with FC breaks down it will search for an alternative adoptive placement even though it acknowledges that it is highly unlikely that an alternative adoptive placement could be found. These are all issues which must be addressed. The local authority has more work to do before this case can fairly be concluded.

Kinship assessment

[137]That leads me back, finally, to what the local authority describes as a viability assessment of PGM. For the reasons set out earlier in this judgment I regard that assessment as inadequate. The notion that a Punjabi speaking grandmother living in India, expressing a clear interest in being assessed as a long-term carer for her granddaughter, not having been provided with any of the background papers translated into Punjabi, can be ruled out on the basis of two telephone conversations one of which was conducted by a Hindi speaking English social worker, is in my judgment wholly unsupportable.[138]Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 concerned an application for a viability assessment. The judge at first instance had described the local authority’s viability assessment of the father of the subject child’s half-brother as “wholly inadequate” and “flawed”. The judge nonetheless declined to order a full independent assessment. In the Court of Appeal, giving the leading judgment, Wall LJ (as he then was) said that, ‘the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject….Accordingly, in my judgment, to do proper justice to [the child’s] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.’[139]Z’s care needs require support from a multi-disciplinary team of health care professionals. Is there any possibility that a similar package of support could be available in India? If the answer to that question is ‘no’ then it seems to me that notwithstanding PGM’s offer to care for Z and the duty on the local authority pursuant to s.17 Children Act 1989 to promote the upbringing of Z by her family, it would be difficult to argue that a move to India would be in Z’s best welfare interests. However, making that point simply serves to highlight the fact that the court does not, at present, have sufficient evidence to enable it to make that judgment. There needs to be a proper assessment of PGM. Any such assessment also needs to identify and consider the services that would be available to meet Z’s care needs in India. These are now issues for further case management.

order

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.(2) To the extent that RD’s observation of contact and reading the contact supervisor’s notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z’s care needs (unlike the foster carer for whom training has been provided).(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.(4) The father is criticised for lack of understanding and insight yet his knowledge of Z’s injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports – or more likely some parts of those reports – read to him in Punjabi. To this must be added the local authority’s failure to give the father opportunity to meet with any of the health care professionals responsible for Z’s care.(5) The local authority’s social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

Cited in 2 later judgments