Judge criticises failures of local authority in care proceedings case

In E (A Child - Application to Discharge Care Order - Failures of the Local Authority), Re [2025] EWFC 223 (25 June 2025), HHJ Earley concluded that the young person, referred to in the judgment as ‘Emi’, positively benefits from remaining a child in care, and therefore that the care order should remain in place, while they remain at home in the care of their mother.

The judgment, handed down in June but published on Bailii this week, concerned Emi's application to discharge their care order and return to the care of their mother.

By the date of the final hearing in May 2025, Emi had transitioned home to the care of their mother in accordance with their strongly held wishes. This move was supported by the local authority, Emi's mother and Emi's Guardian.

HHJ Earley said: “The local authority opposes Emi's application to discharge their Care Order. They support Emi remaining with their mother as an approved placement with a parent, under the Care Planning, Placement and Case Review Regulations 2010. Whilst Emi made the application to discharge the Care Order, by the time of the final hearing their position had shifted and they were no longer actively seeking discharge and confirmed, through [Emi’s Solicitor], that they understood the benefits of remaining subject to a Care Order and why the court may think this was in their best interests.

“Similarly, Emi's mother's final position was that they would accept the court's decision as to whether the Care Order should be discharged. [The Guardian] advocated that the Care Order should be discharged and replaced with a Supervision Order, raising that a Care Order was no longer necessary or proportionate. She acknowledged the benefits to Emi of remaining a Child in Care, however she did not consider this was sufficient reason to retain the Care Order.”

Summarising the case background, the judge said that Emi is very vulnerable, as a result of their past experiences and the trauma they suffered growing up.

Emi’s earliest childhood was disrupted as the mother suffered with mental health difficulties, and Emi spent a period of time being cared for by their grandmother.

The judge said: “Once they [Emi] returned to the care of their mother, Emi grew up in a household where there was domestic abuse and an atmosphere of fear and control. Emi was exposed to their father being verbally and physically abusive to their mother and both parents being emotionally abusive to their younger siblings. Emi was living in a home where their father was a sexual predator and sexually and physically abused his children.”

She added: “Prior to the fact-finding hearing Emi's mother accepted that she had been emotionally and physically abusive to Emi's younger siblings and had failed to protect them from their father's abusive behaviour. She also accepted that despite a previous separation, when the children were younger and their father was convicted of violence and subjected to a Restraining Order, she resumed their relationship and allowed him to move back into the family home once that order expired.”

Analysing Emi’s application to discharge the care order, HHJ Earley said: “In determining Emi's application to discharge the Care Order, I have considered the factors in the welfare checklist in s.1(3) of the Children Act 1989:

• Wishes and Feelings - Emi's wishes are clear, in that they want to return to the care of their mother.
• Needs - Emi has been clear that their emotional needs will only be met by being reunited with their mother. Emi's emotional wellbeing is supported by their engagement in counselling and the local authority have committed to funding a further 12 sessions.
• Change - Were Emi's Care Order to be discharged, this would be a change they would welcome. It would end the need for Emi to ensure their social worker was aware of their whereabouts and to keep the local authority informed of their plans to stay away with friends, etc.
• Background - Emi is nearly 17; they have been in foster care for over two years. […] They have complied with all the expectations of them since their placement in foster care. Within the original care proceedings, there were concerns that Emi was thinking of running away from foster care. This has not happened, and Emi consented to their foster carer being able to see their location at all times to provide reassurance that they were safe and not meeting up with their father.
• Harm - I said in [earlier] judgment that Emi's childhood experiences are likely to have left them with a distorted view as to positive adult relationships and a healthy family dynamic. I concluded in that judgment that Emi would be at risk of harm were they to return to their mother's care, as they remained vulnerable to predatory and abusive adults, including their father. I concluded that without the necessary protective work being done with Emi and their mother, the risk to Emi was too high for me to approve a plan for them to return home. I acknowledged that this decision would cause Emi's emotional harm and distress.
• Capacity of Carers - There is no dispute that Emi's mother can meet their need to live at home and can provide them with love, warmth and a sense of belonging. Emi's mother also supports their education and need to maintain a relationship with their siblings.

Turning to the conduct of the local authority, the judge said: “For over two years the local authority have been Emi's corporate parent through the interim and final Care Orders. Emi's foster carers provided for their day to day needs and although Emi did not consider it a close relationship, they had no criticism of their carers. However, in terms of the local authority's parenting, Emi has been clear that they consider it to have been harmful and neglectful. Emi has felt let down and sidelined by those trusted to meet their needs. These feelings stem from the local authority failure to progress the approved care plan and to keep Emi informed as to what was happening.”

She added: “I was further concerned that despite advocating that Emi remain subject to a Care Order, the local authority did not file an updated Care Plan in time for the final hearing within these proceedings. The only Care Plan before the court at the time of the final hearing was the plan from 2024 for Emi to remain in foster care. The local authority have submitted that this was not a failing on their part, as the order of 31 January 2025 only directed the filing of a social work statement addressing a number of matters, including the alternative care plan were Emi to return home. I accept that there was no specific direction for the filing of an updated Care Plan, however by the time of the final hearing Emi's plan had changed and they had returned to their care of their mother.”

The judge noted that despite the service manager flagging in her statement filed that the local authority was committed to 'wider learning' from the failures in Emi's case, there was “no update in relation to this learning available at the final hearing”.

The judge was satisfied it was in Emi’s best interests to remain at home in the care of their mother. 

However, considering whether the imposition of a Care Order remained necessary and proportionate, she said: “The failings of the local authority up to February 2025 are significant and impacted negatively on Emi and their family. I can have no confidence that were the Care Order discharged and Emi placed on a Child in Need plan, supported by a Supervision Order, that Emi and their mother would have continued access to the services that I assessed as essential back in March 2024.

“[…] More determinative, however, are my remaining concerns about the risk of further harm to Emi and the need for the local authority to continue to monitor this and work with Emi and their mother to ensure the risk is maintained and managed. I remain troubled that neither Emi, nor their mother, are accepting of the risks posed by the father; despite the intervention work that has now been undertaken.

“[…] I also remain concerned in relation to the ongoing police investigation and the impact this could have on Emi. Were the father to be charged with criminal offences there would likely be a need for Emi, and those who have parental responsibility for them, to be involved in decision making as to whether they are called as a witness in those proceedings. I am not satisfied that Emi's mother would be motivated by Emi's best interests at this point. I am clear that there is a need for the local authority to continue to share parental responsibility for Emi, in order to be involved with such important decisions, should they arise before Emi is 18.”

Finally, the judge factored in Emi's relationship with their siblings.

She said: “Under a Care Order the local authority have a responsibility to arrange contact between the siblings for Emi's benefit. Were this order to be replaced with a Supervision Order, the local authority would still have a duty to arrange contact between the siblings that remain in care and Emi, but this would be driven by their needs, which are different to Emi's. The local authority would have no duty to facilitate contact between the siblings who are not looked after children and this would include Emi, were the Care Order to be discharged.

“This difference is amplified by the lack of any planning for sibling contact for Emi in the filed Supervision Order Support Plan. In contrast, in Emi's updated final Care Plan, the local authority have set out the arrangements for Emi to maintain regular contact with all their siblings, some of which is facilitated and arranged by the local authority.”

Concluding the case, HHJ Earley found that Emi “positively benefits” from remaining a child in care, and, as such, it is both “necessary and proportionate” for the care order to remain in force.

Finally, she said: “As I said to Emi at the final hearing, I am grateful that they brought the matter back before the court, in order that I became aware of the failings of the local authority. Whilst matters have ended happily for Emi, as they are home with their mother where they want to be, these proceedings should not have been necessary and it is crucial not to minimise the stress, upset and anxiety these proceedings, and the failures to progress the care plan, had on Emi, as a young person who has already suffered harm in the care of their family.”

Lottie Winson