C-D (A Child), Re

Factual and Procedural Background

The mother appealed against an order made by HHJ Wright on 28th October 2019 concerning her 10-year-old son (referred to as B). The judge had made a care order and an order under section 91(14) of the Children Act 1989. B had been in the care of the Local Authority since 25th October 2018, having previously lived with his mother. The father has been in prison since 2011.

The care proceedings commenced in June 2018 following longstanding concerns about the parents' care of B, including domestic violence, the father's imprisonment, the mother's mental health issues, neglect, and inconsistent care. B had been subject to child protection plans and the Public Law Outline process was initiated in 2017 due to poor school attendance, behavioural issues, and the mother's lack of cooperation with professionals.

After a nationwide search, B was found in late October 2018 and had since been placed with foster carers or in a residential home. A series of professional assessments were carried out, including psychiatric and psychological reports on the mother and B, as well as viability and special guardianship assessments of the maternal aunt (referred to as MA).

The proceedings included a split final hearing, with the first part held in July 2019. The Local Authority sought a care order with a plan for B to live with foster carers or in a residential setting. The mother and father proposed placement with MA under a special guardianship order (SGO), which was opposed by the Guardian and professionals. The judge found the threshold criteria under section 31 of the Children Act 1989 were met and that B would be at risk of significant harm if returned to either parent. The judge also accepted professional evidence that an SGO in favour of MA was not in B’s best interests.

Further assessments of MA as a kinship foster carer were ordered, and the Local Authority amended its care plan accordingly. The judge refused the mother's application to join MA as a party and made a final care order on 28th October 2019, deciding that further investigations outside the looked-after children process were not in B's welfare interests. The judge also made an order under section 91(14) restricting further litigation until 18th October 2021.

Contact arrangements between B and his mother were approved, providing for staged reduction of direct contact, alongside contact with MA. The mother’s appeals challenged the care order and the section 91(14) order on several grounds.

Legal Issues Presented

1. Whether appropriate provision was made to ensure MA had effective access to justice, including whether MA should have been joined as a party or represented.
2. Whether the judge was wrong to make a care order without sufficient analysis of available placement options.
3. Whether the judge wrongly equated foster care with a family member to foster care with a non-family member, affecting proportionality considerations.
4. Whether making the final care order prior to completion of MA’s foster carer assessment and without support plans undermined the order.
5. Whether the arrangements for contact between B and his mother were approved without appropriate evidence or submissions.
6. Whether the judge failed to consider the welfare checklist in full, including B’s wishes and feelings.
7. Whether the judge was wrong to make an order under section 91(14) of the Children Act 1989 restricting further litigation.

Arguments of the Parties

Appellant's Arguments

• The mother argued that MA did not have effective access to justice because she was not represented or joined as a party, which was necessary to properly assess the option of B living with MA under an SGO.
• The mother contended that the care order was made without sufficient analysis of alternatives, particularly without assessing support services or interventions that might enable placement with MA.
• She argued that the judge failed to consider the differences between foster care by a family member and by a non-family member, affecting proportionality.
• The mother submitted that the care order was premature as it was made before MA's foster carer assessment was complete and lacked support plans.
• It was contended that contact arrangements between B and the mother were approved without hearing evidence or submissions.
• The mother claimed the judge failed adequately to consider B's wishes and feelings.
• The mother challenged the validity of the section 91(14) order restricting further litigation.

Respondents' Arguments

• The Local Authority, Guardian, and father opposed the appeal, supporting the judge’s findings that an SGO in favour of MA was not in B’s welfare interests due to concerns about MA’s capacity to manage the relationship with the mother and the risk of placement breakdown.
• They submitted that the judge had sufficient evidence to make an informed decision without MA being represented or joined as a party.
• They argued that the care plan was sufficiently specific and the timing of the care order was appropriate to avoid further delay and instability for B.
• They supported the judge’s approval of contact arrangements and the section 91(14) order as necessary to protect B’s welfare and provide stability.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered the procedural history and the extensive professional evidence, including psychiatric, psychological, and social work assessments. It acknowledged the mother’s arguments but found the circumstances materially different from precedent cases requiring representation or joinder of MA. The court noted that the judge had properly exercised discretion in refusing to join MA as a party or direct an application for an SGO given the negative assessments and lack of merit.

Regarding the care order, the court applied established legal principles requiring a sufficiently firm and particularised care plan. It concluded that the care plan met this standard and that the judge was entitled to make a care order without awaiting the final foster carer assessment of MA, especially as the assessment outcome was evidently negative.

The court rejected the claim that the judge equated foster care by a family member with that by a non-family member, noting explicit recognition of the advantages of placement with MA. The judge’s proportionality assessment was upheld.

On contact arrangements, the court found there was ample evidence and opportunity for submissions, and the judge’s approval was justified. The judge’s references to B’s wishes and feelings, though brief, were sufficient to demonstrate proper consideration of the welfare checklist.

Finally, the court upheld the imposition of the s.91(14) order, emphasizing the need for a period of stability and calm for B’s welfare. The judge’s discretion was exercised appropriately in light of the mother’s history of non-cooperation and the risk of further disruptive litigation.

Holding and Implications

The court DISMISSED the mother’s appeal against the care order and the section 91(14) order.

The direct effect of this decision is that the care order remains in place with B continuing in the care of the Local Authority, and the restriction on further litigation under section 91(14) stands until 18th October 2021. The court confirmed that the option of placement with MA under a special guardianship order was properly and fairly rejected based on comprehensive evidence. No new legal precedent was established; the decision reinforces established principles regarding care orders, the role of professional assessments, and the exercise of discretion in children cases.