It is outrageous that huge sums of money are being spent on judges and barristers involved in care proceedings to conduct complex legal arguments on matters that are relatively simple to resolve. The main principle in care proceedings should always be what is in the child's best interests. However, in a recent family court case differences of opinion between the Vale of Glamorgan council and the judge over the care plan for a 4 year old child resulted in lengthy legal debate which unfortunately took proceedings away from key questions about the complex needs of the child. As a consequence these matters could only be resolved by going to the Court of Appeal (see link in Further Reading below).

When I was a local authority social worker during the 1990s working within the context of care proceedings I recognised that the legal process provided an important framework for dispute resolution. However, it was sometimes possible to make use of the process to work informally to reach agreement about a way forward on a specific question regarding the future care of the children that was acceptable to all parties. During the first stage of a hearing, when the focus was on examining evidence of significant harm to a child, it was inevitable that the process was adversarial. However, once the court had decided that the threshold for section 31 had been met it was considered good practice to shift towards a more non-adversarial approach which would minimise delay in care planning.

The 14 day hearing considered the circumstances of 3 boys in the family, then aged 8 years, 4 years and 21 months, who had remained in their mother's care throughout the proceedings. On the judge’s order they were removed from her home shortly before the conclusion of the initial hearing. The most difficult and contentious part of the hearing had arisen when the welfare needs of the middle child was being considered. The judge eventually granted Care Orders on the oldest and youngest boys but only an Interim Care Order on the middle one because he opposed the local authority care plan of long-term fostering. He adjourned the hearing so that the Agency Decision Maker could re-consider the care plan for this child and invited her to make an application for placement for adoption.

When the case returned to court the local authority opposed the plan for adoption and launched an appeal. Although the Court of Appeal rejected all the arguments presented by the local authority it allowed the appeal and decided the case should be heard by a new judge as soon as possible. The outcome of this has not yet been made public.

The interpretation of what constitutes meeting the child's best interests is an important part of the social work task. Sometimes during care proceedings there are only two realistic options and a choice has to be made between long-term fostering and adoption. In this case it appears that the circumstances of the child presented real social work dilemmas and the arguments for long-term fostering as opposed to adoption were finely balanced.

Some of the problems in this case arose over misunderstandings about the application of attachment theory. This theory has long been seen as significant in child development and social workers recognise that they are often working with families where a child's pattern of attachment to parents has not been good enough in meeting the child's developmental needs. The independent social worker had been instructed by the judge to assess the children's attachments to their parents and siblings. The judge stated that he 'much preferred' the evidence of the independent social worker and the children's guardian, although his explanation of his views did not persuade the local authority that adoption was in the middle child's best interests. Without any information about the precise nature of the boy's relationships with his parents it is impossible to know whether the clean break from them that normally comes with adoption was appropriate.

It is unfortunate that the first judge was not offered a more detailed explanation of the professional knowledge base used by social workers when considering different pathways for long term placements for young children in care. The assessment provided by the local authority apparently focused on the boy's attachment to his older brother. It is not surprising that the judge decided this assessment was flawed. The notion of 'attachment' is important but the theory underpinning this is concerned with attachment to parents or caregivers, not to a sibling. The evidence presented by the local authority should have included a much broader consideration of the boy's emotional difficulties and his future welfare needs.

In attempting to comply with their duty to consider the child's best interests social workers often find they are entering an ideological minefield in which notions of protection and welfare jostle for position with those of rights of parents. Social workers and lawyers should therefore try to work closely together even when there are conflicting views about what 'best interests' will be. In this case views became polarised and no-one was willing to acknowledge the genuine social work dilemmas regarding the care plan and discuss them openly. The local authority should have explained how it had taken into consideration the boy's welfare needs when making its care plan and provided information regarding the welfare checklist of the 1989 Children Act i.e. consideration of the relevant characteristics of the child, his physical, emotional and educational needs, any harm/neglect which he suffered in the past and the likely effect on him of a change in his circumstances. A more detailed analysis of the practical implications of all this would have been helpful.

This boy is now 5 years old and this will obviously have an influence on professional thinking about his long-term needs. Adoption agencies have traditionally been concerned with placing newborns and infants. The placement of children aged 5 or above is known to be a very different matter. It would be more difficult to find adopters who want an older child. They would have to be willing to care for an emotionally troubled boy who would test out their capacity to cope with their new responsibilities.

A key question is to what extent early patterns of emotional and behavioural difficulties can be modified, or discontinued, if the plan is for the provision of long-term, reparative parenting. Managers know that children in care who have suffered poor parenting need stability and security. However, they should be realistic and not seduced by the adoption agenda which often claims to provide the best solution. It is also good practice to stress the importance of children maintaining connection with their kin. This may take the form of direct contact or simply by providing information about their parents and siblings in a supportive way.

To summarise, local authorities are given powers to provide services and the social work profession makes judgements based on its professional expertise. Their decisions need to be scrutinized by the family court and the judge then has to consider whether the local authority has followed due process. It is not appropriate for the judge to challenge social work opinion by means of a process that simply treats it as a legal dispute. The legal process must provide checks and balances but the focus should be more about asking the social workers to provide evidence that supports their professional judgement and the reasoning that points to a particular course of action. Courts are under pressure and it makes sense to find ways of working the resolve differences of opinion as quickly as possible.

The interpretation of what constitutes meeting the child’s welfare needs is a highly contentious area of social work practice. The current system for resolving differences of opinion often amounts to a lottery, depending upon the inclinations of one judge as against another. My concerns about this particular case point to the need for leadership from the social work profession in developing a less adversarial approach when local authorities are involved in care proceedings. I believe that legal aspects of care proceedings receive insufficient attention during social work training.

Hilary Searing

Links to Further Reading

The Court of Appeal in Re TS (Children)

Grey, B (2005) ‘Long Term Fostering or Adoption? A Research Review’, Seen and Heard, Vol. 15, no. 4 (pdf file)

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