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Cite as: [2010] ECHR 1228
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21 July 2010
FOURTH SECTION
Application no.
4547/10
by Y.C.
against the United Kingdom
lodged on 16
January 2010
STATEMENT OF FACTS
THE FACTS
1. The applicant, Y.C., is a British national who was born in 1962 and lives in Bridgewater.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. He is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married.
4. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by the father, she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008, P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents.
5. On 4 June 2008 an Emergency Protection Order was obtained in respect of K. Care proceedings were commenced in the Family Proceedings Court on 5 June 2008 and successive interim care orders were made from 10 June 2008. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C.
6. At the beginning of July 2008, the applicant attended Turning Point to assess her alcohol problems. It was found that she was not dependent on alcohol but she did acknowledge the existence of a long, abusive relationship with the father that had involved the use of alcohol.
7. A guardian was appointed for K. In her Initial Analysis and Recommendation, dated 23 June 2008, she described K as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible.
8. K was subsequently seen by D.I., a psychologist, who produced a final report dated 13 August 2008. D.I. reported that K. both loved and feared his parents and that K.’s main concern was the arguing and shouting that he associated with his parents. D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. was experiencing this in foster care and at school. D.I. also spoke of the parents’ need to address the issues underlying their drinking and violence.
9. The social worker appointed to K. carried out a formal parenting assessment of the applicant from the period July to September 2008. For the first month of the assessment the applicant was living alone at the family home as P.C.’s bail conditions prohibited his return. She told the social worker that although she loved the father, she had ended her relationship with him and she would not consider re-establishing their relationship in future unless he changed his behaviour towards her and his relationship with alcohol.
10. By 13 August 2008 P.C. was once again living at the family home. The applicant had withdrawn her allegations against him and the police had dropped the case against him.
11. The parenting assessment of the mother continued. The social worker found that the applicant had a strong bond with K. and that she showed him appropriate affection. However, she had low self esteem and was unrealistic in her attitude to her past experiences in her relationship with the father. She thought that K. was a happy child and that he had not been affected by the arguments and fights. She further thought that her use of alcohol had not affected her parenting ability. She showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and she had difficulty interacting with K. and keeping him occupied for any length of time. The social worker considered that the applicant deferred to the father on the majority of issues and would not be a protective factor for K. within the family. She said the applicant’s perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The assessment concluded that K. would be at risk of serious harm if he were returned to the care of his parents.
12. D.I. also carried out a full psychological assessment of both parents and having interviewed them and K. he produced a further report dated 3 February 2009. He noted that K. had made progress during his foster placement in coming to terms with his parents’ behaviour. D.I. also reported that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As regards the applicant, the report noted that her love for K., her physical parenting to date, the parenting sessions she had undergone and her declared abstinence from drinking were to be praised and built upon. However, D.I. felt that she needed to address her role in the fighting with the father, with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K.
13. On 20 February 2009, the social worker filed her final statement on behalf of the local authority with the court. She set out in some detail the continuing friction between the parents and the local authority, which she attributed largely to the father’s hostile and non-cooperative stance. She repeated the local authority’s view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. She considered that long-term fostering with ongoing parental contact would not be in K.’s best interests, given his parents’ level of negative influence in his life. She was of the view that there was a limited time window for adoption by a family where he would be legally secure and could develop positive attachments without the negative influence of his parents. She hoped nonetheless that there could be some form of contact with the applicant and P.C.
14. On 17 March 2009 the applicant filed a statement in response in which she sought to address the criticisms made. The statement noted:
“I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... nor have we found the need to drink ...”
15. However, she concluded with the statement that while she and P.C. hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. “was so damaged” that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. A statement from the father confirmed the absence of any domestic incidents, although no mention was made of the possibility of separation.
16. The guardian’s final report dated 27 March 2009 described the uncertain status of the parents’ relationship. She reported that there had been a violent domestic incident on 14 March 2009 when the police were called to the family home to deal with alleged assault and battery. The applicant had told the police that P.C. had hit her. P.C. was sitting inside with an oxygen mask on and denied hitting her. The police arrested P.C. but due to his medical condition he was immediately bailed. No further action was taken as the applicant did not press charges. The guardian had already written her report in draft when she had heard of the domestic incident, and noted that it added “cogent testimony” to the detail of her report. Her report was directed at the prospect of K. returning to the joint care of his parents. She reported on the father’s background and his previous relationships. She compared K. as she currently saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school. As to K.’s wishes and feelings, in November 2008 he had wanted to stay with his carer and to have supervised contact with his parents. In March 2009 he expressed the wish to stay at home, but with social services there, reflecting D.I.’s view that he “both loved and feared his parents, his father more so”. The guardian concluded:
“There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.”
17. A four-day hearing took place before the Sedgemoor Family Proceedings Court between 6 and 9 April 2009. At the start of the hearing, the court was presented with a new case put forward on behalf of the applicant. In a position statement dated 5 April 2009, it was said that on 14 March 2009 the applicant had discovered that the father had been to a pub and had drunk two pints. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had assaulted her by pushing her into a chair and slapping her. She had called the police. She had spent the next two nights away from the family home but had subsequently returned and was now living separately from P.C. She was planning, with the help of a recent inheritance, to rent a property near her sister and to continue living separately from P.C. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about P.C.’s past relationships. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict. She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K.
18. The court heard oral evidence from D.I. and the social worker in support of the local authority’s application. Notes were taken by the clerk. Both witnesses were unsupportive of the applicant’s proposal to be assessed as K.’s sole carer. D.I. said that it was necessary to consider K.’s needs now and that a promise was not the same as change. He indicated that contact between K. and the applicant had not demonstrated a change in parenting skills and stated that while the parents loved K. and wanted to change, they would not change. He did not recommend returning K. to his parents as it would cause him emotional and developmental damage. Nor did he favour adoption, noting K.’s age and characteristics. His preference was for K. to stay with his foster placement on a long-term basis, but he appeared to recognise that this was not an option.
19. The social worker expressed the view that the applicant’s self esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event, the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process.
20. The applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from the father, although she had not told her of the assault. She accepted that her statement of 17 March 2009, in which she had said there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards the father. She told the court that she had decided to move to a new house close to her sister, and that she had been helped by P.G., an adult son of P.C. He was going to move in with her, but not in a romantic relationship. She would apply for an injunction to prevent the father from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She had a fund of GBP 37,000 which she would use for the benefit of K. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place.
21. P.G. gave evidence in support of the applicant. In a brief written statement, he said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could.
22. Finally, the guardian gave evidence, opposing any further assessment of the applicant. She did not think that the applicant could separate from the father simply by moving house, as he had a lot of power and control over her. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. This could only happen with long-term psychological support. She agreed with D.I. that everything would not be fine if the mother separated from P.C. because she would return to him.
23. At the conclusion of the evidence and submissions on 9 April 2009, the court reserved its decision. On 15 April 2009 it handed down judgment. The justices found that the threshold criteria had been established and expressed concern that the applicant had not left P.C. sooner and had failed to understand the difficulties she could encounter if she continued to remain in contact with him. Addressing the question of the assessment proposed by the applicant, they said:
“At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [the father]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.]. In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.”
24. They continued:
“We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of K. ... We believe that making an interim care order with a s.38(6) direction is a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ... The reasons why we have gone against the Guardian’s recommendation is that we believe that a delay of five months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.”
25. The local authority and the child’s guardian appealed the decision, arguing that there was no sufficient basis for the proposal that the mother would be able to parent her child well enough on her own; that the proposed assessment duplicated earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the justices ought to have made a final care order on the evidence before them. In their notices of appeal, they specifically sought a final care order and a placement order.
26. The case came before the County Court on 5 June 2009. The judge reserved his decision to 16 June 2009.
27. However, on 6 June 2009, the court issued an order. The order allowed the appeal. In its second paragraph, the order stated:
“The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.”
28. On 16 June 2009, the judge handed down his judgment on the appeal. He acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the justices was one that was open to them. The judge continued:
“17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.”
29. He concluded:
“... the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption.”
30. He allowed the appeal and made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 37-38 below). He added:
“I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father.
... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.”
31. On 2 July 2009, K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home.
32. The applicant appealed the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act. In particular he should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person. Permission was refused on the papers on 18 September 2009. An oral hearing subsequently took place on 28 October 2009.
33. On 24 November 2009 the Court of Appeal handed down its judgment. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, Lord Justice Thorpe noted:
“Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...”
34. He continued:
“...it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].”
35. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal.
B. Relevant domestic law
36. Section 21 of the Adoption and Children Act 2002 provides for the making of placement orders and reads, in so far as relevant:
“(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.
(2) The court may not make a placement order in respect of a child unless–
(a) the child is subject to a care order,
(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c) the child has no parent or guardian.
(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied–
(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or
(b) that the parent’s or guardian’s consent should be dispensed with.
This subsection is subject to section 52 (parental etc. consent).
(4) A placement order continues in force until–
(a) it is revoked under section 24,
(b) an adoption order is made in respect of the child, or
(c) the child marries or attains the age of 18 years.”
37. Section 52 of the Act provides that:
“(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that–
(a) the parent or guardian cannot be found or is incapable of giving consent, or
(b) the welfare of the child requires the consent to be dispensed with.”
38. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order.
39. Section 27(4) addresses the question of contact with a child who is to be made subject to a placement order:
“Before making a placement order the court must–
(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and
(b) invite the parties to the proceedings to comment on those arrangements.”
40. Section 1 sets out considerations which apply to the exercise of powers under the 2002 Act, including the making of placement orders. Section 1(2) provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers:
“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),
(b) the child’s particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including–
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”
41. Section 1(6) provides:
“The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”
42. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order.
COMPLAINT
43. The applicant complains that her son has been taken away from her and that reasonable efforts to keep him with his family were not made. In particular, she contends that the child’s wishes were ignored and that the authorities were unreasonable to refuse to conduct an assessment of her as a sole carer.
QUESTIONS TO THE PARTIES
(a) was the refusal to allow an assessment of the applicant as a sole carer disproportionate in all the circumstances of the case, including the child’s age and the available evidence as to his wishes?
(b) did the courts have regard to all relevant considerations in reaching their decisions as to whether to make a placement order and were their decisions adequately reasoned?
(a) any note/transcript of the proceedings before the Family Proceedings Court; and
(b) all relevant reports prepared by social services, the child’s guardian and the child’s psychologist in the context of the care proceedings.