The case of London Borough of Enfield v E (Unconscionable Delay) [2024] https://www.bailii.org/ew/cases/EWFC/HCJ/2024/183.html is a strong reminder, that the prompt determination of care and supervision order proceedings is beneficial for the children who are subject of the proceedings but equally is a requirement of the law This was clearly noted by the judge in this case that the statutory 26 weeks limit is a mandatory limit and “not an aspiration or a target.” .. It is what the law requires.”
The facts of the case are detailed below but first let us consider the statutory Public Law Outline timescales
The Public Law Outline
One of the key aims of the Public Law Outline (PLO) is to ensure that the statutory requirement of completing care and supervision order proceedings within 26 weeks from the commencement of the proceedings.
If you want to know more about the PLO and how to achieve the statutory timescales then our previous blog covers this in more detail.
https://www.kingsleyknight.co.uk/grab-a-coffee-with-the-plo-update/
Those involved in children public law proceedings will be familiar with the fact that the statutory timescales are currently not being met. The main downside of this is that it causes delay in the determination of the child’s care plan, and delay is detrimental to a child’s welfare.
The good news is that timescales are improving. In April to June 2024, the average time for public law care or supervision cases was 41 weeks, an impressive 3 weeks down from the same quarter in 2023, (data published by the Ministry of Justice).
This positive improvement comes after the President of the Family Division, Sir Andrew McFarlane, relaunched the Public Law Outline (PLO) in January 2023. Further information on this can be found on our previous blog https://www.kingsleyknight.co.uk/grab-a-coffee-with-the-plo-update/
As part of the relaunch, the President outlined the need for practitioners to ensure that the statutory requirement of completing each public law children’s case within 26 weeks is met “once again”.
The impact of the relaunch is that in August 2024, The President noted that …..things are going in the right direction however, “progress is slow” and “unacceptable backlogs remain”.
The case of London Borough of Enfield v E (Unconscionable Delay) [2024], demonstrated delays and serial failures in:
- acknowledging the 26-week statutory deadline
- the need to make every hearing count, and
- the requirement that experts are permitted only where it is necessary to assist the court to resolve the proceedings justly.
Background of the case:
The proceedings related to E, a new-born child, who unfortunately remained in foster care for over two years whilst the errors and omissions played out, which resulted in inexcusable delay as follows:
- There were four case management hearings in just 10 days to determine the question of E’s interim placement.
- There were then seven IRH’s listings and an adjourned final hearing.
- The case was heard before nine different judges, with:
- over seventeen hearings,
- involving thirty-three different advocates.
- seven IRH’s listings and an adjourned final hearing and
- none of the barristers appearing at the final hearing had previously been instructed in the case
All this resulted in the case concluding at week 133, 107 weeks over the statutory 26 weeks.
The final care plan:
- E, born in December 2021, had a diagnosis of sickle cell anaemia and was placed in foster care shortly after her birth.
- Several concerns were raised about the mother’s attitude, presentation, comments, and gifts when she visited E in the hospital. The mother continued to refuse support from social services and withheld consent to a scan of E.
- The local authority’s final care plan was for E to be placed in the care of her paternal aunt, TD, in Ghana under the auspices of a Special Guardianship Order (SGO).
- The Guardian supported the local authority’s care plan.
- The mother of E sought E’s return to her care and opposed the care plan.
- The judge concluded that it was in E’s best interests to grant an SGO in favour of the paternal aunt and to give the paternal aunt permission to remove E permanently from the jurisdiction of England and Wales to the jurisdiction of Ghana.
Child’s wishes and feelings:
The judge took the view that “at the age of two years old, E is not able to articulate her wishes and feelings. It is reasonable to assume, however, that she would wish to be cared for within her family, ideally by one or both of her parents.
E’s needs:
“In terms of her physical needs, E has the same needs as any child her age but beyond that, and in particular, she requires care that recognises her serious medical condition and provides a level of parenting commensurate with the need to monitor and manage that medical condition. E’s primary carer must be aware of and respond quickly to any signs that she is experiencing a sickle cell crisis.”
Relationship between E and her paternal aunt:
The judge noted that E was introduced to her paternal aunt in September 2023. He said: “The Children’s Guardian observed paternal aunt with E. They were seen to be developing a familiar and trusting relationship with E seeking comfort and reassurance from her aunt.”
Mother’s capacity:
The mother had cognitive impairments and low IQ, which reduced her ability to parent without support.
The Judge concluded: “It is to be acknowledged that, for the reasons set out in Re H (Parents with Learning Difficulties: Risk of Harm), care must be taken to ensure that a parent with learning difficulties is given a fair chance to demonstrate that they have the capacity to care for their child, that compassionate welfare professionals will find it hard to rule out a parent who is unable to parent through no fault of their own and that legal practitioners are required to act in the best interests of their client.”
However, the judge warned that “to continue to pursue assessments in the face of clear forensic evidence that a parent does not have the capacity to parent their child not only causes prejudicial delay for the child. It also amounts, ultimately, to cruelty masquerading as hope for the parent.”
Delay:
We can see from the facts of the case that it did present complexities, which included:
- assessment of a parent with learning difficulties
- undertaking a SGO assessment of a carer who lives abroad,
- a care plan of placement of a child abroad, who has medical needs.
However, given that this case took 133 weeks to conclude, is totally inconsistent with the need for the prompt determination of care proceedings, which is required by law for the benefit of the children who are the subject of the proceedings.
The court noted multiple examples of what it identified as “failures by the court, legal practitioners and welfare professionals”
Another feature already noted in this case was the repeated applications and directions for assessment of the mother, notwithstanding the breakdown of the residential assessment within two weeks
The delay sadly led to E, a new-born child, with significant health needs, remaining in foster care for over two years, and her life regularly interrupted by professional visits and meetings concerning her welfare.
Lessons to note from this case:
- Delays without justification or purpose are prejudicial to the child’s welfare. It is everyone’s responsibility involved in the proceedings to ensure unnecessary delay does not occur.
- Care and Supervision Order proceedings are subject to a statutory timescale. Requests for extending the proceedings beyond the 26 weeks should only be made if it enables the court to resolve the proceedings justly.
- Assessments should be child focused and evidence based, with clear professional social work analysis that supports robust recommendations. Further assessments should only be considered if additional or more up to date evidence is required. to assist the judge in making a final determination in the child’s welfare.
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