Orders in family proceedings – Care order – Mother and child being placed with foster carers

Re H (a child): Court of Appeal, Civil Division (Lord Justices Thorpe, Lewison, and Mr Justice Hedley): 26 October 2012

The proceedings concerned a child born in August 2011. He was the mother's second child. The mother's first child had been made the subject of care and placement orders and was to be adopted in due course. Whilst the mother had not deliberately inflicted harm on that child, the nature of her care for him had been sufficiently dysfunctional that he had suffered serious emotional harm.

The applicant local authority recognised that the mother had made progress and that there was a realistic possibility that she might be able to care for her second child. The authority arranged for the mother to go to a mother-and-baby foster placement. The mother developed a warm relationship with the foster carers, Mr and Mrs F. After three months with Mr and Mrs F, an assessment by the authority found that, whilst good progress had been made, the mother had not yet reached the stage when she would be permitted to be assessed on her own in the community with the child and arrangements were made for her to be moved to another foster placement.

Difficulties arose between the mother and the new foster carers and she was required to leave the placement. The child remained in the second placement. The authority sought a care and placement order in respect of the child. It submitted that the mother had had a disastrous experience of parenting her first child and whilst she had undoubtedly made improvements and it was worth exploring whether she could care for the child, the evidence demonstrated that she would not be able to do so within the timescales suitable and necessary for the child.

In the event, the judge's order had the effect of adjourning the proceedings for a period of three months. He made an interim residence order in respect of Mr and Mrs F and an interim supervision order in favour of the authority. He directed that an independent social worker carry out an assessment of Mr and Mrs F. Accordingly, the mother and child were to return to live with Mr and Mrs F. At the end of the three-month period, it was envisaged that the mother might be able to move into independent accommodation near to, and with the support of, Mr and Mrs F, or alternatively, if she ceased to care for the child, then he would remain with Mr and Mrs F.

The judge had heard evidence from a clinical psychiatrist, Dr S. Dr S expressed anxiety about the proposal and assessed the chances of its success as no more than even. The judge also considered the issue of the age of Mr and Mrs F, who were in their 60s, but considered that members of the extended family might well be able to step in if necessary. The authority appealed. The authority contended that the judge had failed to take full account of the limited prospects of success of the proposal and had failed to take full account of the impact of delay and, in particular, had failed to acknowledge the impact of the combination of those two things on the welfare of the child. The appeal would be dismissed.

The judge had had immense experience in such matters and had decided with his eyes open to do something which others would regard as out of the ordinary. He had been well aware of the tentative professional support that the proposal had aroused and the potential adverse consequences if it went wrong. Although the judge had made a most unusual order and although he must have begun to approach to the limits of his discretion, he had made an order which was logical, humane and very carefully thought-out based essentially on the personal qualities of those with whom he had placed his trust. Such a judgment was and could only be a matter for the trial judge himself.

John Vater QC and Christopher Watson for the authority; Piers Pressdee QC and Lawrence Messling for the mother.