Welcome to another week.

An independent social worker involved in a case where a council placed a baby into foster care without telling the child’s grandparents, likened the handling of the case to a car crash, as she gave her testimony in court.

Judge Lazarus ordered the judgment to be made public after she criticised the social workers, lawyers and the child’s guardian for serious failures within the child protection investigation. Lazarus joins a growing number of judges raising concerns about problems inside the child welfare sector.

The case involved a baby who had been the subject of a care order by Kent County Council before being born. The mother’s parents did not know about the baby until after he had been born, and were not made aware of the application to have the baby fostered.

The child was sent to live with foster parents and remains with them today, after the judge decided that it would be better for the boy not to be moved as he had formed attachments with the foster parents and was thriving in their care.

The judgment tells us that had the grandmother and her husband put themselves forward as potential carers for their grandson, it would have been most likely that they would have been accepted as Special Guardians for the baby. This is what Judge Lazarus says:

“The local authority, the Social Worker, the Children’s Guardian, and the Independent Social Worker all acknowledge that had she and her husband put themselves forward in those proceedings and been assessed it is highly likely that they would have received a positive assessment as X’s proposed Special Guardians. ”

Judge Lazarus goes on to outline the law around external family members and investigating placement options for vulnerable children:

“42. THE LAW – INVESTIGATION OF FAMILY MEMBERS

a) In the case of Re R [2014] EWCA Civ 1625 the former President Sir James Munby stated: “The Public Law Outline [Public Law Outline FPR 2010, PD12A] stresses the vital importance of such potential carers being identified and assessed, at the latest, as soon as possible after the proceedings have begun ”, albeit “not requiring every stone to be uncovered”.

b) Re R provided clarification of the principles underlying the reminders as to good practice set out in Re BS [2013] EWCA Civ 1146 and the need to pay particular heed to the factors in the relevant welfare checklist in order to approach such applications through the prism of the child’s welfare interests. Those cases provided appropriate reminders of the extreme interference with Article 8 rights that these applications represent, of the rigour and exceptionality required by Re B [2013] UKSC 33 to interfere so drastically with those rights, and of the principles applicable from Y v UK (2012) 55 EHRR 33 emphasising the need to preserve personal relations and ‘rebuild’ families.

c) In order to comply with what has become known as the ‘ Re BS checklist’, namely the properly evidenced and reasoned analysis in care and adoption proceedings by the local authority witnesses which should include illustrating the pros and cons of the realistic options, the Local Authority’s evidence must first identify those realistic options, and must then place particular emphasis on considering the factors in the relevant welfare checklist.

d) The factors set out in the welfare checklist in section 1(4) Adoption and Children Act 1989 must be considered on an application for a placement order and to dispense with a parent’s consent under section 52, and specifically at section 1(4)(f) requires consideration of the welfare of the child throughout their life in regard to the child’s relationship with other family members, their ability to meet the child’s needs, and their views and wishes and feelings regarding the child.

e) Relevant duties of the Local Authority are set out in the Children Act 1989, at section 17 in particular, that:

(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.

f) And at section 22C:

(1) This section applies where a local authority are looking after a child (“C”). …

(5) If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.

(6) In subsection (5) “ placement ” means—

(a) placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent ;…”.

Questions remain as to why the council failed to follow the law, and removed the newborn to put him in a foster placement. The case is likely to arouse suspicion amongst families and activists inside the child protection sector, who have long argued that councils are abusing fostering and adoption placements for financial gain. The fostering sector in the UK is currently worth £1.7 billion, and appears to be thriving despite austerity driven budget cuts and pre Brexit uncertainty. A sharp rise in the number of children being removed from parents in the UK with no clear indication as to what factors are causing these removals, is also deeply concerning.

Judge Lazarus chose to put the independent social worker’s quote at the top of her judgment, saying that she felt it summarised the key issues in the case perfectly. This is the quote in full:

“ I likened it to arriving at the scene of a car crash, and wondered what one could do about it. This situation should never have arisen. It’s caused huge tension, including within any recommendation, and I’ve tried to keep X at the centre of it. ”

You can read the judgment on BAILII, which is particularly useful as it outlines the law and guidance in several important areas connected to cases like this one.

This is not the first time Judge Lazarus has spoken about the treatment of vulnerable children and families. Last month, she expressed outrage over the lack of secure accommodation for children at risk of exploitation by gangs, during a hearing involving a 16 year old boy. 

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