21 January 2019

December 2018 - Public Law

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The Court of Appeal considered whether a placement order of a 15-month-old child for adoption was justified in light of the risks

F (A Child - Placement Order- Proportionality) [2018] EWCA Civ 2761

11 December 2018

  • The appeal was brought by a mother of a 15-month-old child against a care and placement order.
  • The mother, who was 33 years old, was vulnerable to abusive relationships, had placed the child at a risk of significant harm and lied about her drinking and contact with the father. The father presented a risk to the child, as hair strand testing revealed the use of cocaine and chronic excessive alcohol consumption. The parents’ relationship was characterised by violence.
  • The local authority issued proceedings following two violent incidents in front of the child, following which the father was sectioned. There was an interim supervision order made, and the mother signed a written agreement.
  • The mother and child had a good relationship and the mother was able to meet the child’s basic needs well for the 11 months that she had him at home. However, hair strand testing revealed chronic and excessive consumption of alcohol which was harmful, and a psychiatric assessment showed a serious deterioration in the mother’s functioning due to abusive relationships.
  • The local authority final care plan was for the child to remain with the mother under a supervision order. However, the Guardian sought an adjournment and further hair strand testing, due to evidence of the parents being in a pub together. The testing confirmed continued excessive alcohol consumption.
  • The local authority changed its care plan to a care and placement order, on the basis that the mother failed to work openly and honestly with the professionals. The Guardian supported this change. The child was removed into foster care and care and placement orders were obtained.
  • The mother appealed. The Court of Appeal balanced, on the one hand, the mother’s failure to adhere to the written agreement, drinking, lack of insight, contact with the father and dishonesty, on the other hand, her relationship with the child, basic care abilities lack of serious mental health problems and addiction.
  • The Court of Appeal closely considered the risks to the child and significance of lies and  the mother’s lack of insight. Peter Jackson LJ concluded that although the first instance judge was aware of the salient features in the case, he did not gather then together and balance them out to justify his welfare conclusion, nor explain how the very extreme order made could be justified on the whole of the evidence.
  • The Court of Appeal found that the evidence in the case did not meet the exacting standards necessary for orders leading to adoption. Although the Court of Appeal shared the judge’s view that it was not safe for the child to return home, more time should have been allowed to gather the necessary information, including information  from alcohol support services. 
  • The appeal was allowed.


Appeal against secure accommodation order

M (A Child) (Secure Accommodation) [2018] EWCA Civ 2707

6th December 2018

  • The Applicant is the child (‘M’). This was M’s appeal against the decision of HHJ Sharpe to grant a Secure Accommodation Order (SAO) in respect of her for 6 months in favour of Pembrokeshire County Council.
  • The Appeal came before McCombe LJ and Peter Jackson LJ sitting in the Court of Appeal on 29th November 2018.
  • Mr. Stephenson of Counsel, for M, argued that:
  1. the judge was wrong to find that either of the statutory gateways was satisfied;
  2. that the making of the order was disproportionate; and
  3. its duration was too long.
  • M is 15 years of age. From the age of 13 she has had increasing involvement with social care due to her being beyond parental control. Her habit is to leave home, use drink and drugs, and place herself at severe and repeated risk of sexual harm. She has a history of absconding.
  • M has spent periods in foster care and residential accommodation in efforts to manage her behaviour. In February 2018 she was diagnosed with suffering from a conduct disorder.
  • In April 2018, such was the risk to M, that HHJ Sharpe authorised a deprivation of liberty at a residential placement under the inherent jurisdiction of the High Court.
  • For the next 4 months there was a marked escalation in M’s behaviour, leading to HHJ Sharpe granting a 3 month SAO on 8th June 2018.
  • During the 3 month period in secure accommodation, her forensic psychiatrist and clinical psychologist reported some progress. However, they were of the view that treatment was in the early stages and it would take 6-9 months, possibly a year, before the required work with M was complete.
  • On this basis Pembrokeshire County Council applied for, and the Court granted an extension of 6 months to the SAO. In making its decision, the Court was assisted by live evidence from the clinical psychologist.
  • Peter Jackson LJ provided the leading judgment, with which McCombe LJ agreed.
  • He found that the threshold for making a care order had clearly been crossed [16].
  • Jackson LJ at [23] states, “the case for a continued SAO was compelling [..]His decision to make the order was in my view correct, and at all events, was certainly not wrong”.
  • At [24] he states that the judge was within his powers making an order of six months duration, having heard the expert evidence.
  • M’s appeal was therefore dismissed.
  • In the judgment Jackson LJ, at [7], summarises the relevant law dealing with the correct approach to be taken in respect of proportionality when considering section 25 Children Act applications. He states, “The central question is perhaps whether the stringent criteria within Section 25 itself amount to an inbuilt proportionality check, or whether, notwithstanding the statutory wording, something more is required”.
  • Although this is unsettled, and will affect only a small number of cases, Jackson LJ urges caution, stating, “all that can be said is that proportionality should not become a surrogate for a general welfare assessment of the kind disapproved in Re M”.



Mother’s application to set aside findings of fact in a non-accidental injury case

A & Anor v Northamptonshire County Council & Ors [2018] EWHC 3244 (Fam)

5th December 2018

  • The Applicant is the mother (‘M’) of a child (‘E’) who had been subject of care proceedings in 2012.
  • M, supported by E’s father (‘F’), applied to the High Court for permission to set aside the 2012 findings of fact.
  • The application was opposed by Northamptonshire County Council and the Guardian.
  • The case came before Keehan J.
  • On 27th September 2012 Mr Recorder Hedley, at the conclusion of a fact finding hearing, found that:
  1. E had sustained 4 fractures;
  2. there was no underlying condition which predisposed E to suffer fractures;
  3. they were all non-accidental injuries; and
  4. they were inflicted either by the mother or by the father.
  • At the final welfare hearing in May 2013, E and her elder sibling were made subject of Special Guardianship Orders in favour of the maternal grandparents.
  • Having privately instructed a consultant paediatric radiologist, Dr. Watt, M applied for permission to set aside the findings of fact on the grounds that there is evidence to suggest E was, at the relevant time:
  1. vitamin D deficient; and
  2. suffered from osteopenia.
  • M argued that the fractures to E may have resulted from an underlying condition which predisposed her to suffer fractures.
  • Between paragraphs [6] – [9] Keehan J provides a useful analysis of the case law commenting on legal test applicable to re-opening findings of fact.
  • Keehan J summarises the key features of the legal test at stage 1 at paragraph [10] which should be read in full. At [10](4) he says,

“there must be some real reason to believe the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge”

  • In the judgment, Keehan J analyses the relevant medical evidence heard at the finding of fact hearing, as well as the subsequent medical evidence which has come to light since, including the report from Dr. Watt.
  • At paragraphs [36] and [37] he is critical of the manner in which M has disclosed this medical evidence into proceedings.
  • In summarising the totality of the medical evidence disclosed, Keehan J states at [45] “there is not a scintilla of evidence that (a) E was ever vitamin D deficient or still less (b) that any such insufficiency could ever have been described as a significant deficiency or severe deficiency such as to have had a material bearing on the causation of E’s fractures”.
  • Keehan J went on to dismiss M’s application for permission to reopen the findings of fact made by Recorder Hedley, stating at [48] I am entirely satisfied that the parents have not established a solid ground for challenging the previous findings of fact, nor some real reason that the earlier findings required revisiting”.