Coffee, Hot Chocolate and Mocha- Modern Child Protection Planning

Traditionally, there was always the case that foster carers were just that, there to care. The parents were very much in the picture. Their polar opposites were the adoptive carers, were seen as future parents not carers, to the exclusion of the parents.

I have been told that a traditional child protection analogy was based upon coffee and hot chocolate. A different need at different times of the day: different children, different future parenting needs. There is now a hybrid version of these new types of parenting need-namely special guardianship orders: a mixture of the two, with elements of both traditional orders and carrying the analogy through-mocha parenting.

Special Guardianship, under section 14A of the Children Act 1989 takes the strengths from the adoption order: security of placement and simplicity and stability of the residence order.

One of the strengths are that although the parents do not loose parental responsibility- the special guardian holds the ace in the pack and exclude the parents from certain decisions. The special guardian's can also change the child's name, as in adoption. From the parents' point of view, however, this is not a forgone conclusion and can be denied by the judge. L (A Child) (2007) 13th March 2007. The security is often for the child, knowing the true nature of the parentage but knowing the carers are there for the long term. More importantly, these orders are supported by regulations-which the local authority is under a statutory duty to carry out. Namely to assess and support the placement with appropriate funding and services. The report is a full survey of the child, its needs and those of the carers to furfil those needs.

There have been a plethora of cases in the appellate court deciding which is the best order for children involved, but what has been interesting is the overwhelming judicial support for these orders. Their popularity amongst the judges, child welfare professionals and indeed families suggests the need was not being serviced before the Children and Adoption Act amendments.

Along with new form of ordering, there is a new form of litigant, often these new orders and these new litigants are side by side. Many of the cases referred to below involve these litigants applying for or being given Special Guardianship orders.

It has been noted that now, a case could involve any satellite relative orbiting the case: an aunt, a grandmother, a cousin, even a neighbour or even a friend of the child's parents have been known. Again, this modern litigant is a blend of the traditional parent and the new social and community relations in parenting today. Importantly, the judges even in county courts in market towns, no longer see these litigants as exceptional now rather normal.

There has already been an interesting rise in the grandmother applicant in family law and there is now a rise in these grandmother applying for special guardianship orders, next generation parenting. Along with this unexpected trend is the expected revolution, allowing the current foster carers to apply for orders which they were previously discouraged from applying for. The law now positively encourages these new types of litigant to come to court and obtain orders, by removing requirements for leave (permission to apply for an order) and time restrictions now down to a year.

The orders that can be applied for are for residence, special guardianship and even adoption orders. This has elevated each and every foster carer to a potential adopter or special guardian. With the case of both orders, the foster carer need only have the child for a year under section 42 of the Children and Adoption Act 2002 to apply for Adoption Order and section 10(5) for a Special Guardianship Order.

This has three clear obvious problems.

Firstly, for local authority foster finding departments. The search for the right placement as opposed to the stop gap placement has now become heightened. Moreover, the idea of cooperation between the foster carer and the parent will have to be managed entirely differently, if any placement could become an adoptive one within the year. Additionally, if the placement was less than ideal due to the nature, need and speed of placement-that foster carer does not have to have local authority support for an application.

Secondly, for that receiving foster parent who now, after a year, no longer needing leave, can apply in the currency of actual proceedings to have the child placed, leaving local authority care plans in tatters.

Thirdly, for the parents, the foster carer who was just an option to care could be a future option to parent before the final hearing. There will be no delay or extra time to convince a court that they are safe to parent in the future. I would advise all barristers and solicitors representing parents to ask for a declaration under section 42 of the 2002 Act and section 10 (5) of the 1989 Act- if the child has been in the placement for over a year. Namely, insure that the social worker has planned for the intervention (if any) of the current carers.

It therefore appears that child welfare professionals and parents have to also stop thinking about traditional roles, litigants, carers and orders and think and expect a modern blend and mix to fit the child's needs more often.

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The cases are available:

Re EN 23rd March, 2007

Re R 20th December, 2006

Re L 13th March, 2007

Re S 6th February, 2007

Re S (no2 )14th February, 2007

Re AJ 6th February, 2007

Re MJ 6th February, 2007

Enquires made by email, will, given time be forwarded to anyone who requests them.

RE S (A CHILD) (2007)
[2007] EWCA Civ 54
CA (Thorpe LJ Tuckey LJ Wall LJ)6/2/2007
FAMILY LAW - LOCAL GOVERNMENT
ADOPTION : CHILDREN : SPECIAL GUARDIANS : SPECIAL GUARDIANSHIP ORDERS : PROPER APPROACH TO MAKING SPECIAL GUARDIANSHIP ORDER : s.91(4) CHILDREN ACT 1989 : s.1(3) CHILDREN ACT 1989 : s.6 ADOPTION ACT 1976 : s.14A(11) CHILDREN ACT 1989 : s.14A(9) CHILDREN ACT 1989 : s.14A(8) CHILDREN ACT 1989 : s.8 CHILDREN ACT 1989
In the circumstances the judge had been entitled to conclude that a child's welfare was better served by a special guardianship order than by an adoption order. The Court of Appeal considered the overarching consideration to be applied in making one or other of those two orders and gave guidance to instant courts on the proper approach in such cases.
The appellant (D) appealed against the decision to appoint her as a special guardian for a six-year-old girl (S) rather than make the adoption order that she had sought. S's mother and father were not married. There were concerns about domestic violence and non-accidental injury to S. Both parents became involved in drugs' use resulting in inappropriate care of S. When S was three, she had been placed with D as her foster mother on a voluntary basis. Care proceedings were commenced and assessments concluded that neither parent was suitable to look after her. After being placed unsuccessfully with a cousin of the father, S eventually returned to D. Later the local authority's care plan changed to adoption outside the family a closed adoption. D therefore put herself forward to adopt S. The father and mother then applied to discharge the care order and for contact. The judge, decided that S should live with D but that adoption order soughtwas not the best or only way of securing S's welfare through her childhood. The judge instead appointed D as a special guardian of S and made an order under the Children Act 1989 s. 91 (4) that leave was required for any application under the Act. Both the mother and the father were to have contact. D submitted that the judge had (1) ignored the guardian's evidence in favour of adoption; (2) failed to address the criteria for consideration of S's welfare as set out in the welfare checklist and had therefore come to the wrong view about special guardianship being the most appropriate order; (3) failed to consider appropriately the issue of whether the mother's consent to adoption had been unreasonably withheld.

HELD: (1) It was not a fair criticism of the judge that she had ignored the guardian's evidence. The guardian had not made a clear recommendation at all. It was therefore sufficient if, as she had done, the judge explained her reasons for making the order she did in terms that made her reasoning clear. (2) The judge had not in terms addressed the welfare checklist contained in section 1 of the 1989 Act. It would have been better had the learned judge had done so; however, it was clear that the judge had grasped and addressed the important issues in the case, and in all the circumstances, the failure to do so by reference to the statutory checklists did not vitiate that judgment. As a matter of discipline, and as an aid to ensuring that the court had fully addressed all the relevant issues, a reference to the checklist and an analysis of the issues by reference to it were desirable. (3) The submission that the judge had failed to address the question of the unreasonable withholding of agreement was unsustainable for the simple reason that the test under the Adoption Act 1976 s.6 was twofold, and the question of dispensation with agreement only arose if the court was satisfied that adoption would safeguard and promote the child's welfare throughout her childhood. In the instant case, the judge was not so satisfied and D fell at that first hurdle. The judge had been entitled to take that approach and to conclude that, on balance, S's welfare was better served by a special guardianship order. The judge had thus been entitled not to address the question of parental consent. (4) Under section 14 A11 of the 1989 Act the court did not have the power to make a special guardianship order unless it had received a report dealing with the matters referred to in s.14A(8). Accordingly the judge should have exercised her power under section 14 (9) to ask the local authority to conduct an investigation and prepare a report. Subject to the parties' submissions, the court proposed to invite the local authority to produce a report under section 14 8 and the judge to reconsider her order having read that report. (5) The court gave guidance on (a) special guardianship orders within pre-existing family relationships; (b) the need, under a special guardianship order, for leave for a parent to apply for an order under section of the 1989 Act; (c) dispensing with parental consent to adoption; (d) in what circumstances, if any, the court should impose a special guardianship order on unwilling parties. Appeal dismissed.