El Sistema Solar

5.1 Introduction

In this chapter we examine how the legal framework for care proceedings operates in practice. We identify which factors, in particular the type of placement, impact on how contact between siblings is addressed in care plans. We also identify the roles played by the different professions in care planning involving siblings and their perceptions of those roles. We begin this part of the report with a brief examination of allocation and gatekeeping of proceedings in the family courts, a rarely examined issue in research. We then turn to the care planning process before examining what happens after the making of care orders. We conclude this part with a detailed explanation for the lack of use of contact orders for siblings in care.

In this chapter, we emphasise siblings who are separated through arrangements other than adoption, which we examine in detail in Part 6. This is because adoption often tends to dominate expressions of concern about the sibling relationship. This is understandable for if siblings are separated by adoption there is a change in the legal

status of a sibling relationship; and it is only here that the impact of the potential loss of the relationship is a factor that the courts are required to address explicitly. The case review revealed that the assumption that alternatives to adoption are more likely to ensure the maintaining of contact with birth relatives is routinely made in the analysis of the advantages and disadvantages of adoption. As Black LJ held in a much cited judgment:

Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is

obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989 ). The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child.’ (Re V (Children) [2013] EWCA Civ 913, at para 96 (iii), emphasis added).

The obligation on local authorities referred to by Black LJ does not apply to siblings, and as noted in the introduction above proposals to change this have been made. However the case law review and the interviews revealed that the obligation was sometimes implicitly understood to apply to siblings30 _{and that the assumptions about contact}

between children in care and ‘family members’ was applied equally to both parents and siblings. As Macfarlane LJ held in 2014:

The conventional starting point for contact to a child in long term foster care is for existing relationships with family members to be maintained by a regime of fairly regular direct contact unless there are specific child focussed reasons for taking an alternative course…The reason for the default position in favour of some direct contact is plain. A child is only in foster care under a care order until he or she achieves the age of 18. At that time and in the years to follow they will be free to re-join their family on whatever basis they may choose. Artificially terminating all contact during the intervening years is therefore likely to be entirely counterproductive and a step which will inhibit the young person’s developing sense of their own identity within their family. (Re G (A Child) [2014] EWCA Civ 1173, at para 35)

One of the barrister interviewees commented:

I think courts are much happier about…being directive in relation to looked after children…it’s not the same sort of no-go area as adoption. (Barrister 2)

However a key finding is that there are wide variations in the degree to which courts are prepared to be ‘directive’, and in particular great reluctance to make court orders for contact between siblings. The practitioners we spoke to emphasised that establishing and maintaining contact between looked after children is often far from straightforward. Our findings here indicate that while the legal relationship between separated siblings in care or accommodated elsewhere remains unchanged, if contact is not enabled, the reality of a loss of the relationship might be just as real and profound as it is in cases involving adoption. Consequently there is a risk that the binary assumptions made about contact post-adoption and contact during care risk complacency about the latter.

30 For example, see (Worcestershire County Council v Mother, The child By the Child’s Guardian) 2016 WL 00890444 where in reference to the relationship between the child and his half siblings the judge held that the local authority’s obligation was to promote contact, HHJ Rundell, at para 27.

5.2 Allocation and gatekeeping

Certainly anything which involved any complicated issues relating to siblings I would hope would not be before the lay justices although I couldn’t guarantee that either…my recollection is that anything to do with siblings is not actually referred to anywhere in the guidance…maybe it should be. (Judge 1)

A key question in practice is determining which level of the Family Court a case should be allocated to. In the current guidance the only explicit reference to siblings is to consider existing proceedings ‘relating to the child or sibling in order to provide continuity’.31 _{‘Complexity’ is the key relevant general factor. There was wide agreement}

that the existence of siblings, per se, did not and should not warrant, a case automatically being allocated to District Judges.

There’s no reason why a magistrate shouldn’t deal with a sibling group. I mean you’re not necessarily saying ‘sibling group therefore problem’. There may not be a problem. But if there is a problem, it could be more complex than in your average case. (Judge 4)

But despite the acknowledgment that a sibling issue could be complex enough to justify allocating the case to a higher court, there was a lack of clarity about what exactly might deem it necessary. Significantly, despite cases involving the separation of siblings being described by judges as particularly troubling and difficult, that factor alone was not considered necessarily ‘complex’ in this context to justify allocation to a District Judge, although one judge suggested that ‘maybe it ought to’ (Judge Focus Group). As one judge noted: ‘it might be an issue which would arise in any level of case’ (Judge 2).

Age and the size of the sibling group were both referred to as possible complicating factors. A magistrate suggested that, ‘I would say four would be the max that we would deal with and most lots of four probably go up’ and that there had been a change:

I’ve actually had a case with four children…ranging from 11 to five and there were differing outcomes…I can’t help thinking that that case might have ended up being allocated to a district judge in today’s environment but this was pre-single family court. (Judge 5)

District and circuit judges confirmed age and size as factors, but were less certain:

I think if you’ve got a large sibling group, four or five children, if you’ve got multiple fathers, you might then be in the territory where at allocation you might think of, say, district judge at least rather than lay bench (Judge 4)

J1: Occasionally if you have a number of siblings of very different age groups in which you may have conflicting care plans, different parties, that can add to the complexity of a matter which may justify certainly a DJ allocation…

J2: It might be the number of parents.

J3:…that might push it up into the more complex bracket because of the number of potential disposals and the sheer number of plans to be looked at. (Judges Focus Group)

Other facts that were deemed ‘complex’ were cultural diversity and, in particular, cases of serious inter-sibling violence, both issues which are referred to in the allocation guidance.32 _{But it was emphasised that it was the}

fact of the violence and not the decision to separate the siblings that was deemed ‘complex’ for these purposes, although, paradoxically, in those cases separation is rarely controversial.

The early timing of the decision to allocate was mentioned by all the judges as being problematic as it might not be until later that a decision to separate siblings, will be known:

J1: I think the other thing to bear in mind about allocation and complexity and this is something I bang on about quite regularly, is that it should be kept under review at each hearing because you might start off with a group of five siblings and four parents and it might look suitable for magistrates or it might… but as it evolves and you see these children maybe going in different directions and have differing 31 President’s Guidance on Allocation and Gatekeeping for Care, Supervision and other Proceedings under Part IV of the Children Act 1989 (Public Law)

Issued in accordance with rule 21 of the Family Court (Composition and Distribution of Business) Rules 2014 (Issued 22nd April 2014), Sch, Col 1 (G) (16).

32 Ibid, Sch, paras 1, 7.

needs, we should be looking at it at that stage. So the mere fact there’s a big sibling group as you both said about allocation doesn’t make it necessarily complex, but it can become complex when the care plans evolve.

J2: I’ve delayed allocation because I’ve absolutely no idea still, and this is the second hearing, how complex it is and the advocates were so ruddy useless they haven’t got a clue either. (Judges Focus Group)

The issue was not raised spontaneously in the interviews and we did not find any cases about challenges to allocations concerning siblings. But the findings revealed that some judges, albeit cautiously, suggested that some clarity might be beneficial and that general principles seemed to be applied about age which may warrant further research to ensure consistent practice across courts. The issue of allocation more generally indicates how the routine nature of the separation of siblings is reinforced by it not being deemed ‘complex’. By way of contrast a magistrate suggested that an application by a child for leave to make an application for a contact order might be considered more suitable for a higher court.

I’ve never had that. I know the procedure exists. My guess is that an application of that kind would probably go before a higher level actually. (Judge 5)

That such an application, unlike a decision to separate siblings, is deemed potentially too complex for a magistrate, emphasises the extent to which there is a perceived exceptionality to contact orders.

Significantly and by way of contrast, judges expressed much clearer and stronger views about how private law cases about relocation should be allocated. One judge commented that: ‘I’d be quite worried about relocation cases being decided by anything other than a full time judge’ (Judge 2). Similarly another observed that:

Lower courts are hearing relocation cases. District judges are hearing them in [city name removed] whereas I wouldn’t have allowed that in [city name removed] (Judge 4)

A magistrate noted how these cases were also far more likely to be reported whereas their cases never were but that they perhaps should be:

If you want to show how the process works in fairly run-of-the-mill sort of circumstances, nothing very exciting about it…up and down the country every day. (Judge 5)

There was a perception here of a certain circularity involved in deeming cases ‘complex’: higher court cases being more likely to be reported reinforces the sense of significance. In other words the higher significance attached to relocation in private law cases reinforces the significance attached to parent contact and, by way of contrast, the very ordinariness of sibling separation with often limited if any contact. In this respect it is possibly significant that the word ‘sibling’ very rarely occurs in reported names of cases about siblings, reinforcing, again, the tendency to view decisions here while difficult to make not, in law, noteworthy.

5.3 Care planning