Family Court judge criticises “manifest delay” in case where new-born child remained in foster care for over two years
A Family Court Judge has criticised the “manifest and wholly unconscionable” delay in a case where a new-born child remained in foster care for over two years.
In London Borough of Enfield v E (Unconscionable Delay) [2024] EWFC 183, Mr Justice MacDonald observed: “Bluntly, this case has demonstrated nearly every type of poor practice that Family Procedure Rules 2010 Part 12 and, in particular, the Public Law Outline in PD12A was intended to eradicate.
“The failure in this case to comply with law governing delay and the case management of proceedings under Part IV of the Children Act 1989 has led to a new-born child remaining in foster care for over two years whilst the errors and omissions summarised above played out before nine different judges over seventeen hearings involving thirty-three different advocates. The adverse impact on E cannot and should not be underestimated.”
The case concerned a young girl, E, born in December 2021. E has a diagnosis of sickle cell anaemia, and was placed in foster care shortly after her birth.
The final care plan of the local authority 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 mother of E is RE. In the proceedings, the mother sought the return of E to her care and opposed the care plan.
After considering the evidence and submissions in the case, the judge was satisfied that the threshold criteria pursuant to s.31(2) of the Children Act 1989 were met.
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.
He said: “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.
“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.”
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 on 29 September 2023. E had already spent the majority of the week with her as part of the planned introductions. They were seen to be developing a familiar and trusting relationship with E seeking comfort and reassurance from her aunt.”
Turning to the issue of what he described as a “manifest and wholly unconscionable” delay, the judge said: “The prompt determination of care proceedings under Part IV of the Children Act 1989 is not a mere aspiration. It is what the law requires.” (Judge’s emphasis)
He observed that a particular feature in the case was the repeated applications and directions for assessment of the mother.
He 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, he 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.”
Lottie Winson
