The application of Public Law Outline PD12A

A Family Court Judge recently criticised the “manifest and wholly unconscionable” delay in a case where a new-born child remained in foster care for over two years. Vistra Greenaway-Harvey explains why.

The case of London Borough of Enfield v E (Unconscionable Delay) [2024] EWFC 183 (12 July 2024) concerns a final hearing in respect of a two-year-old child, E. The local authority’s final care plan was for E to be placed with her paternal aunt in Ghana via a Special Guardianship Order.

The case was marred with a “wholly unconscionable delay” and ran to week 131 of proceedings. From the outset of the judgment, Mr. Justice MacDonald sets out the litany of hearings, judges and advocates that dealt with the case. Perhaps in keeping with this background, none of the advocates who attended the final hearing had been previously instructed in the case. The case concludes with the learned Judge’s observations on the delay itself and Practice Direction 12 and 12A more generally. 

Background

During her pregnancy, the mother made allegations of domestic abuse against the father. The father denied those allegations. Shortly after, the mother entered a new relationship and refused to provide children services with her new partner’s details. The mother then failed to engage with visits; the pre-birth Child Protection Conference and resisted the social worker’s advice regarding her relationship. E was born prematurely on 4 December 2021 after the mother was admitted to hospital for pre-eclampsia. E is diagnosed as having sickle cell anemia. 

Several concerns were raised about the mother’s attitude, presentation, comments, and gifts when she visited E in hospital. As well as the time she spent away from the ward. The mother continued to refuse support from social services and withheld consent to a scan of E.

Proceedings were issued on 4 January 2022. By the final hearing, the court was faced with the thorny issue of determining whether an SGO should be made in favour of the paternal aunt and whether she should be given permission to remove E to Ghana. 

Case management

From the outset the case was poorly managed. There were four case management hearings in just 10 days to determine the question of E’s interim placement. Concurrently Dr Braier carried out a cognitive assessment of the mother. It determined that the mother did not understand a child’s needs and might struggle to process and respond effectively. The mother had cognitive impairments and low IQ which reduced her ability to parent without support.

By the fifth case management hearing the mother’s placement had broken down and reported that the mother required prompting with every aspect of parenting. Noting that the mother needed an urgent assessment of her mental health, the order failed to give any directions for the same. Instead, time was extended for the filing of part 25 applications. 

At the sixth case management hearing a psychiatric assessment of the mother was directed without any evidence of the mother suffering from a significant mental health condition and in circumstances where a comprehensive psychological assessment had been undertaken. The psychiatric assessment confirmed that the mother did not suffer from any major mental illness. Further a PAMS parenting assessment concluded that the mother was unlikely to be able to provide good enough care. The mother would require another adult to care for E full time. As such, the court had much evidence that the mother could not meet E’s needs within a timescale commensurate with her welfare. 

Unfortunately, the next hearing, an IRH was ineffective. For reasons unknown the court listed a further case management hearing rather than a further IRH. The pattern of listing further case management hearings as opposed to assessing whether the case could conclude continued. The father was joined to the proceedings and the issue of assessing the mother for a residential placement reemerged without any consideration of necessity. The residential assessment reached similar conclusions that the mother was unable, even with support and reassurance, to accept or reflect on the local authority’s concerns. The assessment of the father was more positive. A further case management hearing, the ninth, directed a psychological assessment of the father – again this without any consideration of whether the assessment was necessary.  

Finally, a second IRH was listed in December 2022, almost one year after proceedings were issued. However, nothing happened until a consent order was lodged in March 2023 further extending the case management timetable as there had been no parenting assessment of the father. Concurrently the father’s psychological assessment determined that he had no mental health issues and the mother’s addendum parenting assessment reiterated that she could not care for E. However, the mother had made some progress. 

By the third IRH, in June 2023, there were growing concerns about the father’s ability to care for E. The court directed that the local authority files its final evidence, and a full care plan that included an alternative placement with the paternal aunt. The LA confirmed its care plan was placement with the paternal aunt in Ghana at the fifth IRH. A PTR and final hearing were listed for November and December 2023 respectively. The final hearing was subsequently adjourned due to concerns about the paternal aunt’s engagement with E during a visit to this jurisdiction, in which E was hospitalized, but no findings were sought by any party in respect of this. The IRH did not occur until February 2024, two years after proceedings were issued.  The LA’s care plan remained unchanged. The case was reallocated to MacDonald J who listed the matter for a further IRH and a final hearing. 

The final hearing commenced on 8 July 2024. At that hearing the LA’s care plan remained that E should be placed with the paternal aunt in Ghana under an SGO. The Guardian agreed with the care plan. 

The welfare considerations

As ever, E’s welfare was the court’s paramount consideration. In this case the following factors were highly relevant to the court’s decision:

1. The mother’s allegations of domestic abuse;
2. The allegations that the mother was unwilling to provide details of her partner to the local authority to undergo checks;
3. The international element of the placement, including any immigration issues that arose out of placing E in Ghana;
4. E’s sickle cell diagnosis and treatment;
5. The length of transition plan required given E’s surgery. 

Decision

The court made findings that the father was abusive towards the mother as pleaded. The court also found that the mother was unwilling to provide details of her new partner, and this exposed E to a risk of significant harm. Accordingly, the threshold was crossed.

Mr Justice MacDonald was satisfied that it was in E’s best interest that an SGO be made in favour of the paternal aunt and that permission should be given for the aunt to remove E from the jurisdiction to Ghana. His reasoning was as follows:

1. A family placement would optimise ensuring that E’s cultural needs were met. 
2. For no fault of her own, the mother was not capable of meeting E’s needs;
3. The extensive assessment evidence before the court led to the conclusion that the mother is not capable of parenting E;
4. The special guardianship report was not challenged, and they set out the positives of the maternal aunt’s ability to care for E;
5. E’s medical needs provide a further challenge. E’s medical needs could be managed in Ghana. Placement will be a significant change for E, but the disadvantages would be outweighed by the benefits;
6. The aunt’s willingness to travel to England regularly to facilitate direct contact will mitigate against the impact of the changes;
7. The aunt was observed to be calm, patient and unphased in her care of E. 

Commentary on the delay

This note has set out the endemic case management issues that plagued this case. As MacDonald J noted the case demonstrated “nearly every type of poor practice that FPR 2010 Part 12, and in particular, the Public Law Outline PD12A, was intended to eradicate.” Given the persistence of poor practice, MacDonald J considered that PD12A is not being applied consistently and with sufficient rigour within the profession. He reiterated the importance of determining care proceedings promptly is not a mere aspiration but the law, as is FPR 2010 Part 12. Whilst justice must not be sacrificed for speed, a balance must be struck between the need for information and the presumptive prejudice of delay. Further to s.32(7) Children Act 1989 extensions to proceedings require specific justification. 

The failures within this case led to a newborn child remaining in foster care for two years and this impact should not be underestimated. This played out in front of 9 judges over 17 hearings involving thirty-three different advocates. 

The repeated applications and directions for assessment of the mother were a particular feature of this case. Whilst care must be taken to ensuring that parents with learning difficulties are given a fair chance to demonstrate that they have the capacity to care for their child, pursuing assessments in the face of clear forensic evidence that a parent does not have such capacity causes prejudicial delay for the child, and, ultimately, cruelty masquerading as hope for the parent. 

Vistra Greenaway-Harvey is a pupil barrister at 42BR.

42BR’s Jeremy Hall and Kate Claxton appeared for the Mother and the Paternal Aunt respectively.