High Court judge criticises “unconscionable delay” in care case, extension of statutory time limits “by default”
A High Court judge has made a care order in relation to a four-year-old girl (F), finding that her best interests will be met by an adoptive placement outside her family, while criticising the “unconscionable delay” in the case, which took almost 30 months to reach a conclusion.
In F, Re (A Child) (Future Welfare: Post-Adoption Contact: Unconscionable Delay) [2025] EWFC 13 (19 December 2024), Ms Justice Henke concluded: “I have accepted the local authority's care plan and their commitment to match F with an adoptive placement which will facilitate direct contact for identity purposes.
“I cannot close this judgment without considering the protracted nature of the proceedings before me. The delay in this case is unconscionable. […] Delay is contrary to the interests of all children, and it has been contrary to F's welfare. She has been the subject of social care intervention all her life and within these current proceedings alone has had to wait for more than half her life awaiting a decision about her future. During that time, she has had eight separate placements. F deserved better than that.”
Ms Justice Henke said: “She [F] was 23 months old when the application before me was issued. This is the second public law application in relation to F, the first having been issued when she was a day old. The final care plan I am asked to endorse is a plan for F to be adopted. Accordingly, an application for a placement order was made by the local authority on 10 April 2024. Within that application, I am asked to dispense with her parents' consent to her adoption.”
F's mother is G. F's father is I - he is not named on F's birth certificate, and he does not have parental responsibility for his daughter.
The judge noted that at the time that the public law proceedings were issued, the father was subject to a restraining order made in 2021 preventing him from having contact with G for two years.
Outlining the events which precipitated the second public law proceedings, the judge noted that while F was living with her mother in the community under a supervision order, in June 2022, the local authority received a report from a concerned neighbour that G had resumed her contact with I.
The Out of Hours Team of the local authority contacted G and asked her if that was true. G denied that it was. However, later that month a social worker made an unannounced visit to the home G and F shared. There, when shown photographic evidence, G admitted I had been at the property and that she had resumed a sexual relationship with him.
She told the social worker that she considered that I deserved a chance to have contact with his daughter and that she was considering revoking the restraining order.
The next month the local authority received information that G had started a new relationship with LM. Initial police checks disclosed he had recently been released from prison and posed a risk to G and F.
A second application for public law orders was made and came before a district judge in August 2022.
Ms Justice Henke noted: “At that time the local authority had been unable to identify a suitable foster care placement for F. The court therefore adjourned the application for interim separation, made no new order and gave directions to further the proceedings.”
Those directions included a direction for an updating parenting assessment; a cognitive assessment of the mother and directions for the assessment of alternative carers, if G could not care for F.
The next hearing was before a different judge in September. The supervision order made in the previous proceedings was due to expire and accordingly was extended to last for the duration of the present proceedings.
At the time that order was made, the IRH [Issues Resolution Hearing] was listed for 21 December 2022.
The application next came before the court in late October 2022, when it was heard by Recorder Reed. At that hearing, the court made an interim care order, refused interim removal and endorsed a plan for F to be placed in a mother and baby placement with G.
The judge said: “By a subsequent consent order, the timetable for the proceedings was altered. The IRH was re-listed in February 2023. The timetable was further extended by a further consent order with the IRH to be listed on the first available date after 10 March 2023. That timetable was further extended by yet another consent order with the IRH being listed on 5 April 2023.”
The IRH came before District Judge Rahman. By that date, the local authority had filed and served its evidence confirming that they sought care and placement orders in relation to F. The care plan was opposed by G.
In May 2024, HHJ Scarrett gave an extempore judgment in which he refused to endorse the local authority's care plan for adoption and found that it was not in F's best interests to be placed with her mother in the community.
Accordingly, the court adjourned the case and invited the local authority to change its care plan to one of long term foster care with ongoing contact between F and her mother and indicated that on the next occasion it would make a care order on that basis. The court expressed the wish that F could remain with her current foster carers, Mr and Mrs K.
The final hearing took place in June 2024 when HHJ Scarrett made a final care order in relation to F, refused to make a placement order, and adjourned the proceedings to enable the local authority to file an amended care plan.
In the meantime, the local authority had begun to make inquiries of F's present foster carers.
The judge said: “In summary, the Team Manager wished to know whether, despite what had been said by Mrs K in the court proceedings, whether they "are putting themselves forward to care for F long term and what this may look like". The response was unequivocal: "Mr and Mrs K have been very clear that the maximum amount of time they would keep F for is 5 years […] They cannot commit to care for her until she is 18".”
The information was provided to HHJ Scarrett at a hearing in July 2024.
HHJ Scarrett gave an indication of further amendments required to be made to the care plan, but recited on the face of the order: "to hear that the current foster carer has indicated that she can only keep F in her care for about 5 years, stating that this was not the impression she gave in evidence, the Court stating its decision might have been different in this extremely finely balanced case had it been aware of this. The Court indicated that a postscript will be added to the Judgment in relation to this issue, noting that the Local Authority has lodged an application to appeal the decision of the Court".
The local authority applied for permission to appeal the orders of HHJ Scarrett. Permission to appeal was granted by Peter Jackson LJ.
The appeal was heard in August 2024 and judgment was delivered later that month. The Court of Appeal allowed the appeal and remitted the application for a public law order and for a placement order for hearing in the Family Court.
The judge noted: “Pending that re-hearing, F has remained in the interim care of the local authority.”
Turning to the present case, Ms Justice Henke said it was accepted that the threshold criteria within s.31(2) Children Act 1989 was crossed in this case.
Analysing the case, the judge said: “I accept and place in the balance in my decision-making that any plan for F that does not return her to her mother's care will disrupt her relationship with her mother and will cause her emotional and psychological distress and potentially harm. I acknowledge that G is a significant adult in F's life and that G is important to her.
“[…] I stand back and look at the welfare options available for F. Having balanced all the factors in favour of and against the welfare options that are available for F, I have concluded that F's best interests throughout her life will be met by an adoptive placement outside her family.
“F's history of placements to date and the failure of her placement with her mother in the community mean that F has an overwhelming need for permanence and that is best achieved for F by adoption. F's best interests are my paramount consideration. On the facts of this case adoption is undoubtedly in her best interests.”
The judge made the placement order sought by the local authority.
She added: “I have considered whether I should make a s.26 ACA contact order to set the template for contact between F and her mother. G asks me to say the frequency should be monthly and if that is not in F's best interests, then she seeks as much contact as I will order. I understand G's sentiments but what she seeks is not in F's best interests. It would be disruptive and would in my judgment undermine F's ability to settle in her forever home.
“I have accepted the local authority's care plan and their commitment to match F with an adoptive placement which will facilitate direct contact for identity purposes. In the circumstances, I have reminded myself of s.1(6) ACA 2002. In this case, I do not consider a s.26 order is necessary.”
Finally, criticising what she described as an “unconscionable delay”, Ms Justice Henke made the following observations:
“Standing back and looking at the chronology, the delay in this case is not attributable to any one factor. The reasons are multiple but three stand out.
“Firstly, the use of consent orders. The first IRH was listed in December 2022. It should never have been vacated by consent. The two other consent orders that followed built on unconscionable delay in this case. I have reminded myself of PD12A and paragraph 6.1-6.6 thereof. In particular, I consider that paragraph 6.3 is apposite. It states:
"The court may extend the period within which proceedings are intended to be resolved on its own initiative or on application. Applications for an extension should, wherever possible, only be made so that they are considered at any hearing for which a date has been fixed or for which a date is about to be fixed. Where a date for a hearing has been fixed, a party who wishes to make an application at that hearing but does not have sufficient time to file an application notice should as soon as possible inform the court (if possible in writing) and, if possible, the other parties of the nature of the application and the reason for it. The party should then make the application orally at the hearing."
“The effect of the three consent orders in this case was to extend the statutory time limit of 26 weeks without any specific consideration of the impact on the statutory time limit or its purpose. The clear expectation in paragraph 6.3 and the sentence I have underlined above in particular is that applications for extension of the time limit should be considered at a hearing. A hearing would have provided an opportunity for robust case management.”
She continued: “Secondly, the professionals in this case have on occasion and totally unintentionally lost sight of F being the subject of the proceedings and her best interests being the paramount consideration. G is engaging and vulnerable. The most natural reaction to her and her vulnerability is to want to nurture her and to enable her to effectively parent F. […] Looking at the chronology in this case, from an evidential perspective the case has not been advanced since the ISW's assessment concluded [in] December 2022. What happened thereafter, in my judgment, is that under the label of further assessment, G was given yet further chances to parent F when there was already strong evidence that G could parent F but, despite extensive social work intervention and support in a number of forms, could not sustain change and was unlikely to be able to do so in the future.
“Thirdly, I cannot ignore the time lapse between the IRH in April 2023 and this case being listed for final hearing in November 2023. The reason for the delay appears to be pressure on the Family Court system and the lack of court hearing time. That final hearing listed in November 2023 was then vacated after the filing of a consent order because the Agency Decision-Maker required further evidence. That resulted in the case being listed in May 2024 before HHJ Scarrett. The consent order makes no mention of the extension of the statutory time limit, and it appears that no formal application for such an extension was ever sought. The statutory time limit was simply extended by default. That is not good enough. It is not in accordance with PD12A chapter 6. It is a practice that is to be deprecated.”
Lottie Winson
