This is a first post by Alexandra Wilson. Alexandra is a barrister specialising in Family and Criminal law at 5 St Andrew’s Hill. She tweets as @EssexBarrister.

A recent podcast on BBC sounds by ‘File on 4’ focused on separated siblings in the care system. 

One of the stories is from a woman who explains that she was split from her sister and wasn’t allowed to see her despite her living just five minutes away. She recalls that between their respective foster families’ homes there was a park where she would see her younger sister playing with her foster sister. Breaking down into tears, she explains that she felt hurt, angry, annoyed, sad and “thought it was really, really cruel”.

The separation of siblings is a growing problem. In England, more than 78,000 children are in care, which is an increase of almost 30% in the past 10 years. ‘File on 4’ filed a freedom of information request to all local authorities, of which two-thirds provided data. This data revealed that more than half of children in the care system are separated from their siblings. 

Care plans often specify that sibling relationships are to be maintained through indirect or direct contact. 

A recent judgment Re G [2019] deals with the separation of siblings in a case where the court explicitly approved a care plan that set out that the sisters were to remain together. 

Re G [2019] EWFC B70 (13 June 2019)

This case concerned two sisters who were separated in the care system by a local authority, despite assurances being made to the court and the children’s guardian, from Cafcass, that they would keep the sisters together. 

The girls (born in 2008 and 2015) were described as having a strong attachment with each other despite their age difference. They were initially taken into care in early 2016 because of their mother’s drug use and associated lifestyle. The judge in this new hearing, Her Honour Judge Matthews QC, emphasised that she was publishing this judgment as a “cautionary tale” to childcare professionals as to the dangers of ignoring court-approved care plans, failing to consult with professionals such as Cafcass and losing a sense of fairness and responsibility to families. 

The care plan approved by the court was that the local authority would try to find a joint placement for the sisters to be adopted within six months; if that failed, it was agreed that the sisters would remain together in a long-term foster placement. The social worker reported that “remaining together will allow continuity of their evident strong attachment to each other and outweigh the impact of separation, both emotionally and in respect of their sense of identity”.

It was evident from the beginning of proceedings that there were some difficulties with the older child’s behaviour. The judge who approved the care plan, Recorder Bickler QC, acknowledged her “troubling behaviour in recent weeks” but since there is no transcript of the hearing it is unclear how concerned the judge was. He recognised the sisters’ needs were “not necessarily consistent with the other” and that if they could not be jointly placed, the youngest child would spend her entire childhood in foster care. 

By mid 2017, the local authority had identified an adoptive placement for both girls. Introductions began one month later and a final contact with the birth family took place. Later that month the prospective adopters withdrew on the basis that they did not think they could manage the older child’s behaviour. The male foster carer explained to the older child that the professionals did not feel that this was the right family for her. 

A couple of months later, in the summer of 2017, a disruption hearing was held by professionals, which was chaired by the independent reviewing officer. At this meeting it was raised that the sisters needed to be separated as it was unlikely that their needs would be met in a joint placement. It was agreed that a siblings assessment was needed and that a bridging placement would be identified for both girls to stay together. A bridging placement was not identified and the children remained with their previous foster carer. 

The sibling assessment was to be undertaken by a chartered psychologist. The judge found that at this point the local authority were “developing a new plan by commissioning expert evidence.” She also concluded that the questions were “weighted toward the issue of separation of the girls and separate care plans” despite there already being a court-approved plan for if no joint adoptive placement could be found. 

In mid-November the chartered psychologist emailed the local authority stating that urgent separation was needed. He claimed that the older child needed to be placed in a foster placement with no other children as “there are clear safeguarding issues with regard to her sister and the birth child that the foster carers are having to manage which is untenable and unsafe”. He recommended that the child be moved without any prior knowledge or preparation. 

It later transpired that the chartered psychologist only believed they were at risk of emotional harm despite communicating that there was a risk of physical harm. 

The foster carers were informed and they informed the local authority that they wished for the older child to be removed. The local authority followed the psychologist’s advice and collected the older child from school and took her to a new emergency foster placement. 

The psychologist produced a report by the end of November advising that the local authority pursue separate plans for each sister: a residential plan for the older child and an adoption plan for the younger child. The psychologist then met with the older child at her school, without the social worker’s agreement, to explain this to her. The older child was, in this way, prepared for a goodbye visit with her younger sister. 

The local authority agreed by early December that the plan would change in accordance with the psychologist’s advice. A goodbye visit for the siblings was planned to take place in January 2018. Within hours, the younger child was put before the placement team and advertised for adoption just two days later. 

HHJ Matthews concluded that her “main concern in this case” revolved around the local authority failing to involve the court in this change of plan. She states that “what was required at this stage was independent scrutiny of the local authority.” She criticises the local authority for failing to follow their own decision to identify a long-term joint foster placement. 

The social worker was instructed to tell the birth mother of the proposals by January 2018 but she wasn’t told until March 2018, after her younger child had been advertised for adoption for 3 months. 

In December, it was discussed at a legal meeting that the Local Authority needed to return to court to request that the placement order for the older child be revoked. The relevant paperwork, however, was not completed until four months after the date set by the service manager. The social worker explained in these proceedings that they were prioritising other complex cases. 

The judge in this case commented on how the speed at which the younger child was advertised shows “how the local authority can move quickly; how they can take action when they want to.” This is in contrast to the delay in informing the birth mother of the change in plans; the delay in bringing matters back before the court; and the delay in seeking appropriate therapy and a suitable placement for the oldest child. 

In March 2018, the older child was placed in a residential placement, where she remains. The local authority issued an application to revoke the placement order six months after the decision was made. The younger child was placed with her prospective adopters, where she too remains.

These issues came before the court in the summer of 2018 when the mother applied to discharge the care order for the older child and the placement order for the younger child. Since the younger child was in a proposed adoptive placement, the application in respect of her could not be made. 

The court had two alternatives. Either the Cafcass guardian would have to issue an application that she did not support the revocation of the younger child’s placement order; or the prospective adopters would have to bring forward the issuing of their adoption application. The latter was the chosen route. 

The maternal grandmother was added as a party. She initially sought care of both children, then just the older child. The girls’ mother failed a drug test and so supported the maternal grandmother’s application. An independent social worker assessed the maternal grandmother and felt that she didn’t have the knowledge or expertise to provide the older child with the therapeutic parenting that she needed. 

The final care plan agreed for the older child was that she will remain in her current placement subject to a final care order and the placement order was revoked. The maternal grandmother remains hopeful that she may be able to live with her in the future and the local authority recommended regular contact between them. The plan agreed for the younger child was that she be adopted by her prospective adopters. 

The local authority recommended that despite being adopted, the younger child continued to have twice yearly indirect letterbox contact with her birth family. She currently had indirect contact with her older sister, by written exchange. The local authority hope that the sisters will have direct contact twice a year. 

Commentary

The judge clearly articulates her serious concerns with the chartered psychologist’s professional competency but the main issue appears to be the number of errors made by the local authority. In particular, they acted in contravention of the court-approved care plan without consulting court professionals. The judge concludes that “reflection needs to be built-in to social work practice which should not be a series of knee-jerk reactions, but rather considered reflective planning.”

The conclusion of this case is perhaps not the happy ending that readers had hoped for. The sisters remain separate and it raises important questions about weighing up competing factors when assessing what is in the best interests of a child. 

The younger sister is adopted but her adoptive family have had to compromise in enabling her to continue to have contact with her birth family and direct contact with her sister. This is something that they are unlikely to have initially appreciated would happen when they engaged in the adoption process. It is evident that she is doing well with her adoptive family and that this has significantly outweighed the consideration of her being reunited with her sister in long-term foster care.

The older sister has suffered throughout this process. She would have understood the assurances made that she would remain with her sister and at points has been entirely alone in care with no contact with any family. The local authority let her down, particularly in separating her from her sister without prior knowledge or preparation. Whilst the judgment reports that she is doing well in her residential placement, it is less clear that this placement was a better option for her than being reunited with her sister. 

As with all decisions, there is a balancing exercise. Recorder Bickler QC highlighted early on in these proceedings that if the children could not be jointly placed, there was a risk that the younger child would spend her entire childhood in foster care. This factor was considered, yet at the time it was still deemed to be in the best interests of the children (if a joint adoptive placement could not be found) for them to remain together in long term foster care rather than be separated. The case concludes with their separation and the youngest child no longer being in foster care. Whilst this is undoubtedly in the best interests of the youngest child; the older child has endured harm. 

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Feature pic : Swing by Michael Kappel via Flickr creative commons licence – thanks!