04 October 2017

August 2017 - Public Law

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Application for Deprivation of Liberty and secure Accommodation Orders in respect of a 14 year old child

LB of Southwark v F [2017] EWHC 2189 (Fam)

24th August 2017


  • The court was concerned with F, a boy aged 14 years old. Since June of this year F has been subject to a Care Order in favour of London Borough of Southwark. During the court of the proceedings F was assessed by Dr Derek Blincow, lead psychiatrist at the Priory Hospital’s High dependency Adolescent Unit.
  • F was a young person with a complex care history, who has suffered a degree of emotional and perhaps physical neglect as well as being under considerable stress. There are real grounds for believing that F is involved in serious gangland activity, that he finds employment as a drugs courier or deliverer. He has been investigated for an offence of rape, though this has been discontinued and he finds himself before the youth court facing two serious charges of robbery.  He already has a conviction relating to knives.
  • The welfare conclusion in the care proceedings was that F should be placed in a residential unit. F absconded from the unit 2 days before the final Care Order was made, having been placed there on interim arrangements. DJ Alderson issued a Recovery Order in the 23rd June 2017 but it was not possible to implement this until the 8th August 2017 when F was discovered by chance during a police operation in a crack den.
  • The LA issued an application on the 11th August 2017 to place F in secure accommodation. The LA were unable to identify a suitable secure placement, and issued a deprivation of Liberty Application on 11th August 2017 alongside an application for a Secure Accommodation Order. The plan at that stage was for F to be placed in a residential unit, with 2 to 1 supervision, until a secure unit could be identified for F.
  • The case comes before the court to seek a continued authorisation of the deprivation of liberty first granted by Mr Justice Moor on the 11th August and reviewed a week later by Mrs Justice Parker. Throughout this time, the local authority was continuing their search for a Secure Accommodation Unit, recognising that the status quo was far from satisfactory and insufficiently safe. The Local Authority's application is made pursuant to s.25 of the Children Act 1989.
  • The judge stated that “The kind of order that the local authority seek is, as I am at pain to emphasise, absolutely a measure of last resort and it is a significant deprivation of F's liberty. Any court will consider the grant of such an order with very great care and having heard what I have heard, and been provided with the documents that have been made available to me today, I am satisfied that not only is there no alternative but that nothing else will do.  It needs to be stated in unambiguous terms: F is a danger to himself; to other vulnerable young people; to the public generally and in particular to those charged with his care.”
  • Hayden J also reiterated the comments of Munby P in the case of Re X (A Child) No 3[2017] EWHC 2036 (Fam) and directed that his judgment be given in open court and forwarded to the Minister of State for Education.



Refusal of an application for leave to oppose an adoption order

Re DB (A Minor) [2017] EWFC 45

25th July 2017


  • The court was concerned with an application by two parents for permission to oppose an adoption application in respect of their son D, born 2 June 2013 and now aged 4 years old. D was made the subject of a care order and a placement order on 15 April 2016 and was placed with the prospective adopters who have now made an application for an adoption order.
  • Both of D’s parents had been known to the LA for a number of years and each has had other children who have been made the subject of care orders. Due to the historic concerns D was made subject to a CIN plan when he was born and initially remained at home with the parents with support from social services. Proceedings were issued after D presented at hospital on 17th April 2015 suffering an injury to his frenulum and bruises to his face and body. He was made the subject of a police protection order and EPO. The LA started care proceedings and D was made subject of an ICO. Ms P, D’s babysitter was joined as an intervenor and a finding of fact hearing took place in September 2015 before HHJ Melville QC.
  • The judge reached the conclusions that some of D’s injuries were inflicted by Ms P and that she together with the father or both parents were in the pool of perpetrators for various other injuries. The judge was satisfied that neither Ms P or the parents had sought appropriate treatment for D, told the truth about what really happened and had been involved in the consumption and supply of illegal drugs and legal highs making them emotionally and physically unavailable for D. an assessment carried out by a consultant psychologist, Dr Anna Gough, concluded that both parties had significant and unresolved attachments histories that had impacted upon their capacity to care for D in a safe and nurturing environment. The fathers prognosis for psychological change was poor and the mother was deemed to have some insight into her psychological difficulties but this was compromised by her continued dependence on the father. She concluded that D needed robust relationship-based strategies to help him recover.
  • At the final welfare hearing the judge concluded that D was seriously damaged, the mother and father were both untruthful and unhelpful and that the likely effect of D ceasing to be a member of his original family and becoming an adopted person “can only be beneficial’. He noted that if D had suffered acute physical and emotional harm in his birth family and, if he were returned to them, this would continue. He concluded there was no alternative to a care order and approved the care plan, dispensing with the parents consent and making a placement order.
  • Baker J heard the application and reviewed the law for leave to oppose the adoption order in particular the the provisions of ACA 2002; courts leave under s.47(5) ACA 2002. The court cannot give leave unless satisfied there has been a change in the circumstances since the placement was made s.47(7). The judge directed himself to the case or Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616 and Re B-S (Adoption: Application of s.47(5)) [2013] EWCA Civ 1146.
  • Baker J read and heard evidence from the parties and concluded that there was no evidence of any real change of circumstances in the case. The father had put forward no evidence of change whatsoever and the mother had merely made lifestyle changes only.
  • It was not necessary for Baker J to address the second stage of whether the court should exercise its discretion to permit the parents to oppose the application.



Dismissal of mother’s application to appeal against final care orders

L (Children) [2017] EWCA Civ 1137

27th July 2017


  • Appeal against final care orders made by HHJ Melville QC on 23/1/17, with the effect that the children be removed from mother’s care and placed in long term foster care.
  • The grounds of appeal asserted that the local authority and the court were in breach of duties under the Equality Act in pursuing removal rather than making reasonable adjustments to support the learning disabled mother.
  • Both parents have significant learning disability and the Father is a Schedule 1 offender.
  • HHJ Melville conducted an extensive review of the relevant evidence, giving prominence to the expert psychologist who’s primary concern was for the children’s emotional needs which she felt were not adequately met in the full time care of the mother. She recommended the children live in foster care during the week and return to the mother at weekends.
  • The Guardian recommended the children to remain with their mother save for respite placement every other weekend as she felt the care provided had been ‘good enough’ in part because of the high level of support from the maternal grandmother.
  • The judge identified three elements, that were established on the balance of probability, which caused concern as to the children remaining in the mother’s care:
    • Lack of basic physical care within a sufficiently structured home regime;
    • Continued sexual risk to the children;
    • Mother not displaying any emotional attunement.
  • The judge readily rejected making no order and turned to the choice of supervision or care orders; concluding that “although a care order in respect of each child is a last resort, it is the only possible outcome”.
  • At the oral hearing the appeal was confined to three core submissions:
    • The judge failed to properly consider and evaluate the guardian’s recommendation;
    • The judge’s welfare analysis was deficient and fundamentally wrong;
    • The judge failed to carry out a sufficient analysis of whether the removal of the children was necessary and proportionate.
  • Mr Devereux submitted that the judge had failed to drill down into the options and consider the care plans for each option and had rather simply compared the two distinct categories of order. Further that the welfare analysis was superficial at best with no reference to the children’s age and understanding.
  • The Local Authority opposed on the basis that the judgment was clear as to findings and the basis of the welfare decision.
  • The judgment is open to some criticism regarding the approach to the welfare checklist and in terms of layout however it is clear that the outcome must turn upon the judge’s finding that the children continued to be exposed to significant harm.
  • As such, despite the deficits in the content and structure of the judgment it is clear that there could be only one outcome.
  • Appeal is therefore dismissed.