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Y.C. v. THE UNITED KINGDOM - 4547/10 [2012] ECHR 433 (13 March 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/433.html
Cite as:
[2012] ECHR 433,
55 EHRR 33
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FOURTH
SECTION
CASE OF
Y.C. v. THE UNITED KINGDOM
(Application
no. 4547/10)
JUDGMENT
STRASBOURG
13 March
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Y.C. v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Nicolas Bratza,
Päivi
Hirvelä,
George Nicolaou,
Zdravka
Kalaydjieva,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4547/10)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a British
national, Ms Y.C. (“the applicant”), on 16 January 2010.
The Vice-President of
the Section granted the applicant anonymity
(Rule 47 § 3 of the Rules of Court).
2. The
applicant, who had been granted legal aid, was represented by Pardoes
Solicitors, a firm of solicitors based in Bridgwater. The
United Kingdom Government (“the Government”) were
represented by their Agent, Mr M. Kuzmicki, of the Foreign and
Commonwealth Office.
3. The
applicant alleged a violation of Article 8 as a result of the
refusal of the domestic courts to assess her as a sole carer for her
son and their failure to have regard to all relevant considerations
when making a placement order.
On
19 July 2010 the Vice-President of
the Section decided to give notice of the application to the
Government. It was also decided to grant priority to
the application (Rule 41 of the Rules of Court) and to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The background facts
The
applicant was born in 1962 and lives in
Bridgwater.
The
applicant’s son, K., was born on 21 April 2001. The father of
the child is P.C. P.C. 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.
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 P.C., 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.
B. The domestic proceedings
1. The emergency protection order application
On
4 June 2008 the local authority applied to the Family Proceedings
Court for an emergency protection order (“EPO” –
see paragraph 92 below) in respect of K. The
application was heard the same day.
The court made an EPO, limited in time to 10 June 2008,
for the following reasons:
“There is significant risk of further harm –
emotional and physical abuse if [K.] is not removed from his current
environment. We are concerned about the mother consuming alcohol to
excess when in sole charge of [K.] and further possible violent
conflict when father is released probably on bail tomorrow. This is
in light of previous domestic violent incidents between the parents
in [K.]’s presence, which could lead to further physical harm
to [K.].
The
court took into account K.’s right to respect for his family
life but considered that he should be protected and placed in a safe
environment.
2. The care proceedings before the Family Proceedings
Court
a. The interim care orders and preparation
for hearing
On 5 June 2008 the local authority applied for a care
order (see paragraph 93 below) in respect
of K., with interim care orders (see paragraph 95
below) as requested. In its application, the local authority referred
to the high level of police involvement in the family due to
incidents of domestic violence and alcohol abuse and the need for a
full assessment to be undertaken.
On
6 June 2008 the applicant attended a meeting where she informed the
local authority that she had separated from P.C. She then had a
contact session with K. and after the session, was observed walking
with and talking to P.C.
A
hearing took place on 10 June 2008 and an interim care order (“ICO”)
was made, to expire on 8 July 2008.
K. was placed in the care of foster parents, with
frequent contact with the applicant and P.C. A guardian was appointed
for K. In her Initial Analysis and Recommendation report, 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.
As
P.C. contested the proposed renewal of the ICO, a contested ICO
hearing was fixed for 8 July 2008.
The applicant and P.C. attended Turning Point to
assess their alcohol dependency. Reports were prepared, on 30 June
2008 in respect of the applicant and on 1 July 2008 in respect of
P.C. It was found that neither party was dependent on alcohol. In the
applicant’s report, it was noted that she acknowledged the
existence of a long, abusive relationship with P.C. that had involved
the use of alcohol and that she had talked about the difficulty of
dealing with the recent loss of her mother. The report recommended
bereavement counselling, emotional support and activities to help the
applicant rebuild her self-esteem and confidence to be able to cope
with the changes occurring in her life.
At the contested ICO hearing on 8 July 2008 the court
had sight of the guardian’s report and heard evidence from the
guardian, three social workers and P.C. It made a further ICO, to
expire on 5 August 2008, referring to the history of domestic
violence and noting:
“We understand that [P.C.] and [the applicant] are
currently residing at different premises but we are not convinced
that they have separated on a permanent basis ...
We have had sight of the Turning Point reports in which
it is reported that [P.C.] and [the applicant] are not alcohol
dependent; however we are not convinced that they will not continue
to drink to excess in the future. Further counselling in respect of
their alcohol consumption will benefit both parties as would domestic
violence counselling. We are pleased that [the applicant] has made
efforts to access help from various agencies ...”
The
court noted that the guardian supported the renewal of the ICO and
continued:
“... [K.] should not be returned to either parent
until each has been assessed for their parenting ability and receive
any necessary support. ...”
It
considered K.’s right to respect for his family life and
concluded that the making of the ICO was a proportionate response to
the situation.
Further
ICOs were made on 5 August 2008, 2 September 2008, 30 September
2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December
2008, 12 January 2009, 9 February 2009 and 9 March 2009.
In the meantime, K. was examined by D.I., a
psychologist, who produced an expert report dated 13 August 2008.
As to K.’s perceptions of his mother and father,
the report noted that he both loved and feared his parents and that
his main concern was the arguing and shouting that he associated with
his parents. Regarding the possible psychological implications of the
domestic violence and alcohol abuse he had witnessed, D.I. described
the emotional damage suffered by a child growing up in an
“invalidating environment”. He noted that K. demonstrated
some of the characteristics of such damage, but was also showing
signs of resilience.
In terms of therapeutic work which should be
undertaken with K., D.I. 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. appeared to be experiencing this in foster care and at school
and commented:
“[K.’s] parents would do well to consider
the positive effects that [K.’s] relationship with them can
have upon his development and sense of identity should they address
the issues that underlie their violence and drinking.”
He highlighted the need to focus on K.’s sense
of identity and his emotional development, problem solving, cognitive
functioning, self-esteem and social competence.
The social worker appointed to K. carried out a formal
parenting assessment of the applicant from July to September 2008,
based on five sessions between the applicant and social workers and
observations of the supervised contact sessions with K. When the
assessment began the applicant was living alone at the family home.
She told the social worker that she had ended her relationship with
P.C. and she would not consider re-establishing it unless he changed
his behaviour towards her and his relationship with alcohol. All the
meetings took place while the applicant was separated from P.C.
However, on 13 August 2008 P.C. confirmed to the local authority that
he had moved back into the family home and was once again in a
relationship with the applicant. The applicant subsequently informed
that court that she and P.C. had reconciled. She explained that they
had been together for a long time and that the relationship had, with
the exception of the previous twelve months, been strong and stable.
In an undated parenting assessment report in respect
of the applicant completed after the applicant’s reconciliation
with P.C., the social worker noted that she had discussed with the
applicant domestic violence and controlling behaviour, and the
support that she could access. When asked how she would manage
situations in the future if she was no longer in a relationship with
P.C. and he came to visit, the report noted:
“[The applicant] said she would allow him in for a
coffee. [The applicant] then added that she would not allow alcohol
in the house and would throw him out if this happened. [The
applicant] was not able to reflect on her past experiences involving
[P.C.] and was unrealistic in her responses in regard to this.”
The report recorded that although the applicant
admitted that she became more argumentative after drinking, she did
not consider that the arguments had had any impact on K. or that her
parenting ability had been impaired after drinking. She continued to
receive support from Turning Point and attended weekly.
The social worker commented on the fact that on each
of the visits, she had found the applicant’s home to be in good
order, clean and tidy. She observed that the applicant demonstrated a
strong loving bond towards K. and that she offered him appropriate
affection. However, observations of K.’s behaviour and
responses suggested that he had developed an insecure attachment. The
applicant’s knowledge of the dietary needs of a child were
found to be adequate, although in practice it appeared that they ate
convenience foods rather than fresh vegetables and that the applicant
allowed K. too many unhealthy snacks. The social worker also raised
some concerns regarding the applicant’s ability to address and
treat signs of illness in K. and the lack of attention paid to K.’s
dental care. She noted that the applicant showed poor knowledge of
the need for visual stimulation, interaction and setting appropriate
routines and that she had difficulty interacting with K. and keeping
him occupied for any length of time.
The social worker considered that the applicant
deferred to P.C. on the majority of issues, apparently because she
was afraid of the repercussions of challenging him. The applicant was
unable to recognise that the behaviour she described was abusive and
that it would have a detrimental effect on K. She unintentionally put
K. at risk because her perception of parenting did not afford her the
ability to identify risk, make decisions and set appropriate
boundaries for K. The report concluded:
“[The applicant] has informed me that she is in a
relationship with [P.C.] and that their intentions are to parent [K.]
together. [The applicant] cannot be considered a protective factor
within the relationship. The Local Authority are concerned about the
significant risk that this will place on [K.] if in the care of his
parents in terms of all aspects of his development, safety and
security.
It is therefore the view of the Local Authority that
should [K.] be returned to the care of [the applicant and P.C.] he
would be [at] risk of further significant harm.”
An undated parenting assessment report of P.C.
indicated that a significant concern was that he displayed
aggression, intimidation and controlling behaviours when not under
the influence of alcohol.
Alcohol
tests of the applicant and P.C. from samples collected on
30 September and 11 September respectively showed no evidence of
frequent excessive alcohol consumption.
The social worker prepared further statements for the
court following the parenting assessment reports. In a statement
dated 21 September 2008, it was noted that K. had become upset
on occasions during contact with the applicant and said that he
wanted to go home.
Between October 2008 and January 2009 the applicant
and P.C. attended a Time to Talk parent support group and had three
one-to-one parenting sessions.
D.I. also carried out a full psychological assessment
of both parents and produced an addendum report dated 3 February
2009. In his report, D.I. noted:
“... [K.] told me when asked that he wants to go
home, that his mum likes him and added that his dad takes him out and
gives him presents ...”
D.I. observed that K. displayed fewer characteristics
of emotional trauma than in the previous meeting. When questioned
about his relationships with his family he indicated strong positive
feelings for his parents, and in particular for his mother.
D.I. commented 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 to their ability to prevent further domestic violence, D.I.
referred to incidents of aggressive behaviour by P.C. which he had
personally witnessed and noted that this did not “augur well
for someone who considers that their aggression is due only to
drinking behaviour”. He considered that he had insufficient
details of P.C.’s history to make a more accurate prediction.
He criticised the parents’ lack of self-awareness and noted
that there was still work to be done in this regard. In terms of the
parents’ ability to engage meaningfully with professionals,
D.I. commented only on P.C., making reference to problems encountered
in this respect. Similarly, in so far as their commitment to the care
of K. was concerned, D.I. referred to certain indications of P.C.’s
level of commitment, with no specific examples of the applicant’s
conduct, while making the overall assessment that he was not
convinced that the parents had fully taken on board what they needed
to learn from their mistakes and what new parenting behaviour they
were going to practise.
As regards the aspects of each parent’s
psychological profile that were likely to assist or hinder their
parenting of K., D.I. explained that serious limitations were placed
on his assessment of P.C. by his lack of cooperation. In respect of
the applicant, he explained:
“[The applicant’s] profile ... is
characterized by prominent compulsive, narcissistic and histrionic
patterns. This does not imply that she has a personality disorder but
does have patterns of behaviour that need addressing ... These
patterns need to be addressed by [the applicant] in counselling to
address bereavement and domestic violence. Otherwise they will have
an impact that hinders good enough parenting. [The applicant’s]
love for [K.], her physical parenting to date, participation in the
Time to Talk programme and her declared abstinence from drinking thus
far are to be praised and built upon.”
D.I. noted that K. appeared to see the applicant as
the main source and object of his love, but cautioned that K. might
be idealising the situation at home as he was no longer there. He
continued:
“... [K.] is attached to both his parents. He
stated a strong preference to return home. [K.] is less attached to
his father than his mother ...”
In terms of therapeutic intervention required, D.I.
considered that the applicant needed to address her role in the
fighting with P.C., with discussion about her drinking, her lack of
assertiveness and her inability to impose boundaries on K.
On
20 February 2009 the social worker filed her final statement on
behalf of the local authority with the court. She indicated that
since K. had been taken into care in June 2008, there were no
recorded domestic incidents and that both parties had informed her
that they were still abstaining from alcohol.
She reported that both the applicant and P.C. had
“continued to work with professionals to a limited extent”.
She gave examples of P.C.’s unwillingness to work with the
local authority and how the applicant often found herself in the
middle of conflicts between the two.
As to K’s own views, she noted:
“... When I have tried to ask [K.] how he would
feel about going home he has changed the subject.”
In her analysis and conclusions, she noted:
“In a very simplistic form it may appear that [K.]
is in the care of the local authority due to his parents drinking and
violence and as the parents have self reported that there have been
no further incidents and we have no evidence to say there are then
[K.] should return home. However there are a significant number of
other factors which evidence that there remain extensive concerns.”
She referred to attempts by the local authority to
conduct a parenting assessment prior to K.’s removal into care,
which had been unsuccessful as a result of the parents’ failure
to engage. She also referred to the separation of the applicant and
P.C. in 2008, which she considered not to have been genuine from the
very outset. She raised concerns about K.’s health, and notably
his lack of immunisations and bad dental condition, which she noted
appeared to some extent to result from P.C.’s difficult
behaviour. She explained that her professional opinion was that P.C.
had engaged only superficially in the parenting assessment and had
failed to recognise or accept his shortcomings and their impact on
his parenting. She continued:
“We acknowledge that [the applicant] is in a very
difficult position and we have seen that she has made efforts to work
with the local authority but is often stuck in the middle of the
conflict [P.C.] has with the department. She has been successful in
persuading [P.C.] to comply with some issues, but on occasions she
has been unable to share information with him until she has chosen
the right time as she predicted ‘he will blow’. However
[the applicant] is a very vulnerable woman who is not strong enough
to separate or manage on her own. She is aware of the conflict [P.C.]
creates with others and tries to be the ‘peacemaker’ ...”
As to the parents’ abstinence from drinking, she
noted that it was not possible to predict whether this would
continue, partly because of their failure to participate in any
meaningful assessments, and she referred in this regard to P.C.’s
refusal to provide relevant information. Similarly, as regards the
likelihood of further incidents of domestic violence occurring, she
noted that past behaviour was the best predictor, and that P.C. had a
history of violence in previous relationships. He had done minimal
work to address concerns and nothing which could give the local
authority confidence that K.’s needs would be met
appropriately. She continued:
“... [T]he level of cooperation and lack of
awareness in my professional opinion is sadly lacking and has not
given the local authority any information which enables them to make
a decision that it is appropriate for [K.] to return to his parents.
The court could consider that a further opportunity is given to [the
applicant and P.C.] to undertake that assessment. However it has been
made very clear to them during the court process that this
information is essential in informing the court care plan and it is
unlikely that [P.C.’s] attitude is likely to change in the
short term and we cannot delay planning for [K.] any further. [The
applicant and P.C.] have been aware of the seriousness of this case
from the outset and despite the possibility of their son not being
returned to their care they remain resolute in their attitude and
lack of acknowledgment of the issues. [P.C.] in particular has
deflected the issues away from his parenting of [K.] and the issues
within the family focussing on acrimonious relationships with
professionals and losing sight of [K.’s] needs.”
In
her professional opinion, K. had an idealised view of returning home,
seeing the opportunity for treats and presents with the ability to
manipulate his parents into giving him all he wanted with few
boundaries and controls. He maintained his strong desire to have
supervised contact to ensure that the arguments between his parents
did not recommence.
In conclusion, she repeated her view that K. would
suffer significant harm if he returned home as their drinking and
violence were likely to reoccur. Neither parent had engaged in any
meaningful assessments which would indicate a positive outcome were
K. to return home. The parents were committed to one another and P.C.
had shown no ability to work in partnership with the local authority.
She considered that K. was of an age where there was a very limited
time window for achieving legal permanence and long-term fostering
with ongoing parental contact would not be in his best interests,
given his parents’ level of negative influence in his life. She
was of the view that K. needed the opportunity to form attachments
with long-term carers without the placement being undermined by his
parents. She therefore concluded:
“The local authority respectfully recommends to
the court that [K.’s] long term interests can be best met
through adoption preferably with some form of contact with his
parents. [K.] is only 7 and deserves the opportunity to live in a
family where he will be legally secure, developing positive
attachments without feeling disloyal to his parents. He needs to be
with a family who can exercise parental responsibility and make
decisions in [K.’s] life without the negative influence of the
birth parents.”
She asked the court to make a care order and a
placement order in respect of K.
On 17 March 2009 the applicant filed a statement in
response. 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 ... I confirm that we do
not consume alcohol and although we have indicated that we would be
willing to undergo further testing when we have met on contact
appointments the same has never been pursued ...”
She refuted several aspects of the social worker’s
statement, noting:
“... It often feels like whatever we are being
asked to do we are then asked to do more. I certainly do not agree
that I have only worked with professionals to a limited extent.”
She concluded that while she and P.C. had 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. She requested the
court not to make a placement order and to return K. to her care.
A
statement from P.C. confirmed the absence of any domestic incidents
and the fact that neither he nor the applicant had consumed any
alcohol. No mention was made of the possibility of separation.
The guardian’s Final Analysis and
Recommendations report was dated 30 March 2009. It was based on full
consideration of the welfare checklist (see paragraph 97
below). In the section of her report dealing with recent
developments, she indicated that the status of the relationship
between the applicant and P.C. was not clear as they had recently
informed the authorities that they had separated. The report also
referred to information regarding a violent domestic incident at the
home on 14 March 2009 when the police were called. The applicant had
told the police that P.C. had hit her, although he denied it. The
guardian explained that the information had been received after the
report had been prepared in draft, but noted that the incident added
“cogent testimony” to the detail of her report.
The guardian compared K. as she then 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 appeared confused about returning home. He had felt safe with
his carers and gave mixed messages about whether he wished to stay
with them or return home. He was firm in his view that he did not
want contact with his parents without social workers being present.
In March 2009 he indicated that he wanted to go home to live with his
parents. When questioned about how that would work since he wished to
have supervised contact with them, he replied that social services
would also be there. She observed:
“These statements clearly demonstrate what [D.I.]
has stated in ‘that [K.] both loves and fears his parents –
his father more so’. He wants to go home but wants the safety
net of social workers being in his home to protect him.”
The report continued:
“In my opinion [the parents] both needed to access
treatment programmes for their drinking and violence, they would also
have to begin to discover, reflect and recover from the underlying
issues that led to the drinking and violence in the 1st
place ...”
The report went on to consider in more detail P.C.’s
behaviour and history.
The guardian also commented on the parenting
assessments conducted, noting in respect of the applicant that she
appeared to lack understanding of the impact of arguments on K. and
of alcohol on her parenting ability, and that she failed to see that
P.C.’s behaviour towards her was abusive and controlling. The
guardian considered the crux of the issue for reunification to be
that the parents had not engaged in or completed treatment programmes
for alcohol or domestic abuse, noting that P.C. refused to accept
that he was a perpetrator. She 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.”
She recommended that the court endorse the local
authority plan for a care order with a plan for adoption.
b. The hearing before the Family
Proceedings Court
A
four-day hearing took place before the Family Proceedings Court
between 6 and 9 April 2009. It had before it applications by the
local authority for a care order and for a placement order.
At the start of the hearing, the court was presented
with a new case on behalf of the applicant. In a position statement
dated 5 April 2009, she said that on 14 March 2009 she had discovered
that P.C. had been to a pub and had drunk two pints of beer. She had
remonstrated with him for drinking when they were so close to having
K. returned to them and he had pushed her into a chair and slapped
her. She had called the police. She said that the relationship with
P.C. was over, and that from the guardian’s report she had
learned new information about domestic violence in P.C.’s past
relationships. She was planning, with the help of a recent
inheritance, to rent a property near her sister, with the support of
her sister and P.C.’s adult son, P.G. The applicant asked to be
given a chance to prove that she could safely parent K. on her own,
away from parental conflict, and requested a section 38(6) assessment
of her as a sole carer (see paragraph 96
below). 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. In the interim, she sought a further
ICO.
In a brief written statement dated 8 April 2009, P.G.
said that he intended to sign a joint lease shortly, move in with the
applicant and support her as much as he could.
The court heard oral evidence. Notes were taken by the
clerk and a transcribed note of evidence has been provided to the
Court by the respondent Government. However, it is in note form, with
no clear distinction drawn between questions asked by counsel and
responses made by witnesses. The notes are therefore of limited
assistance in identifying the exact nature of the oral evidence given
and any conclusions drawn from them should be treated with caution.
It appears from the notes that, in his oral evidence,
D.I. expressed concern regarding the lack of evidence of a change in
parenting skills by the applicant. Some discussion of adoption took
place with him. He appeared to agree that if K. could be
rehabilitated to the applicant’s care, in circumstances in
which his needs were properly met by her, then that would be a better
solution than adoption. The notes suggest that he referred to K.’s
age and the greater difficulties encountered in seeking to place an
older child for adoption. However, he seems to have expressed
pessimism about the prospects for change in the applicant’s
behaviour, and indicated that his preference was for K. to stay with
his foster placement on a long-term basis, although he appeared to
recognise that this was not an option. He commented that the
applicant had been entirely cooperative with him. His views on the
value of a further assessment of the applicant are not clear.
The notes suggest that the social worker did not
believe that the applicant’s separation from P.C. was genuine.
She expressed the view that the applicant was so entrenched in
domestic violence and her 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.
The notes confirm that 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 P.C.
She accepted that her statement of 17 March 2009, in which she had
said that 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 P.C. She reiterated that she had decided to move to a
new house close to her sister and that P.G. was going to move in with
her to assist. She had a fund of GBP 37,000 which she would use for
the benefit of K. She would apply for an injunction to prevent P.C.
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 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.
Finally, the guardian gave evidence. The notes
indicate that she opposed any further assessment of the applicant. It
appears that she did not think that the separation was genuine. 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. It seems that the guardian gave evidence
to the effect that a quarter of the children placed for adoption the
previous year were K.’s age. She appears to have expressed
concern that any work with the applicant to address her issues would
require long-term psychological input. She recommended adoption and
indirect contact with the parents until they came to terms with the
adoption.
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. Commenting on the parenting assessments, the
court indicated that in its view the contact sessions had generally
gone well. It observed:
“... We note that [K.] is not distressed when he
returns from contact with his parents and understand that during
contact he does ask his parents when he can come home and whether
they have stopped drinking.”
The court found that the threshold criteria for the
making of a final care order (see paragraph 93
below) had been established, in light of the parents exposing K. to
domestic violence and alcohol misuse causing him emotional and
physical harm. It considered its range of powers and the need for a
care order, referring to section 1 of the Children’s Act 1989
(see paragraph 97 below) and emphasising
that the child’s welfare was the paramount consideration. It
continued:
“In determining the child’s welfare we have
considered the welfare checklist. We have referred to the welfare
consideration in the Children’s Guardian’s report and
consider this to be comprehensive. We accept the welfare aspects but
consequent upon the late position statement by mother, dated 5 April
2009, reach a different conclusion. The Guardian’s report does
not address [the parents’] separation. ... 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 [P.C.]. 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.”
After examining domestic case-law on the circumstances
in which a parenting assessment was appropriate, the court 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 accept that [K.] needs a secure and stable
environment in which to develop and have his needs met but this must
be weighed up against him losing the opportunity to be brought up
within his birth family, particularly his mother. He is 8 years old
next week and has memories of his parents and has continuously asked
when he can return to live with them. Although we are sure that he is
scared of the domestic violence, through the parents’
separation and an injunction against [P.C.] this risk can be managed.
We have considered the human rights issues. We believe
that making an interim care order with a s 38(6) direction is
necessary and 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 court recorded that this option was not
recommended by the guardian, and explained why it disagreed:
“The reasons why we have gone against the
Guardian’s recommendation are that we believe that a delay of 5
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.”
The court accordingly made a direction for a section
38(6) assessment and made a further ICO in respect of K.
3. The appeal to the County Court
The local authority and the child’s guardian
appealed the decision of the Family Proceedings Court, arguing that
there was no sufficient basis for the proposal that the applicant
would be able to parent K. well enough on her own; that the proposed
assessment would duplicate 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
court ought to have made a final care order on the evidence before
it. In their notices of appeal, they specifically sought a final care
order and a placement order.
On 2 June 2009 the social worker lodged a further
statement with the court. She confirmed that K. had been informed of
the separation of his parents and appeared to have accepted the
situation, noting that he seemed more relaxed during contact sessions
with his mother and made no reference to having contact with his
father. The social worker also confirmed that the applicant had moved
to a new address, on the basis of a joint tenancy agreement with
P.G., but indicated that P.G. had not actually yet moved into the
property. The applicant remained in direct and indirect contact with
P.C., and the social worker noted that she appeared to be confused
about his behaviour towards her.
The statement indicated that the applicant had been
informed of the support she could access in order to develop her
parenting skills, but observed that to date she had not accessed such
support. The applicant had also spoken with a domestic violence
worker, although a planned meeting had not taken place as there was
some confusion over the venue and had not been rescheduled. The
social worker reported that contact sessions between the applicant
and K. had been broadly positive. However, she considered that the
applicant had demonstrated that she was unable to make a clean break
from P.C., which remained a concern to social services.
The case came before the County Court on 5 June 2009.
By that time, the applicant and P.G. had signed a lease on a property
and the applicant had moved there. The judge considered extensive
written and oral argument from the local authority and the guardian
in support of the appeal. He took into account a substantial skeleton
argument submitted by the applicant, who was represented by counsel
at the hearing. He also had before him the various reports prepared
for the hearing before the Family Proceedings Court and the note of
oral evidence prepared by the clerk (see paragraph 63
above). He reserved his decision to 16 June 2009.
In the interim, on 6 June 2009, the court issued an
order allowing 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.”
On 16 June 2009 the judge handed down his judgment on
the appeal. He summarised the relevant reports and the oral evidence
as recorded in the notes by the clerk, commenting:
“10. ... [T]he justices [in the Family Proceedings
Court] heard first oral evidence from [D.I.], and then from [the
social worker] in support of the local authority’s application.
Their evidence is recorded in notes kept by the justices’
clerk. I should observe that these notes are quite difficult to
follow and there is sometimes little distinction between questions
put and answers given. It is however clear that, when questioned
about the mother’s proposal to be assessed as a sole care for
[K.], both witnesses were unsupportive. [D.I.] said it was necessary
to consider [K.’s] needs now, and that a promise was not the
same as change. He said that the mother’s contact had not
demonstrated a change in parenting skills. He was struck by the
guardian’s report, acknowledging that although the parents
loved their child and wanted to change, they could not change. He
said that [K.] was insecurely attached to both parents. He said that
he was not recommending returning [K.] to his parents as it would
cause him emotional and developmental damage. He said that his
preference would be for [K.] to stay with his foster placement on a
long-term basis, but it appears that he recognised that this was not
an option. [The social worker] expressed the view that the mother’s
self-esteem was so eroded that she would not be able to separate
properly from the father. She said that it was unclear whether the
proposed assessment would be residential or in the community, but
that in any event the local authority had already carried out a
parenting assessment. She said that a further assessment would
unsettle [K.], disrupt his placement and delay the matching process.”
The judge summarised the evidence of the applicant and
P.G. before turning to the evidence of the guardian, in respect of
which he noted:
“13. ... Again it was clear from her evidence that
she opposed the further assessment of the mother. She said that she
did not think that the mother could separate from the father simply
by moving house, as he had a lot of power and control over her. But
whether or not the separation was genuine was immaterial because in
order to keep herself and [K.] safe her personality needed 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 because she would return to the father.”
The judge 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 Family
Proceedings Court was one that was open to it. He 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.”
He continued:
“18. I have come to the conclusion that 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 ... In these circumstances
the decision of the justices must be categorised as wrong, and must
be set aside ...”
He therefore allowed the appeal, indicated that he was
satisfied that the conditions for making a care order existed and
accordingly 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
99 and 101 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.”
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.
4. The appeal to the Court of Appeal
The applicant sought leave to appeal 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 (see paragraphs 103-104
below). In particular, she contended, the judge 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 to appeal was refused on the papers on 18
September 2009 on the ground that the County Court judge had been
sitting in an appellate capacity, that he had reached a conclusion
that was clearly open to him and that he had explained his conclusion
most clearly. The applicant renewed her request for leave. An oral
hearing subsequently took place on 28 October 2009.
On 24 November 2009 the Court of Appeal handed down
its judgment on the request for leave to appeal. In relation to the
applicant’s complaint that the County Court had failed to take
into account relevant considerations, and in particular had failed to
have regard to the welfare checklist, the judge delivering the
opinion of the court 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 ...”
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].”
He concluded that there was no error of law in the
County Court’s decision and dismissed the application for
permission to appeal.
5. Subsequent events
A
final supervised contact between K. and the applicant took place in
December 2009.
K.
was placed with a prospective adoptive parent on 18 January 2010.
On 5 May 2010 the applicant made an application to the
court for contact with K. pursuant to section 26(3) of the 2002 Act
(see paragraph 102 below). This was refused on
16 September 2010. No court decision has been submitted to the Court
but it appears that there were ongoing concerns about the level of
the parents’ separation. In a statement to the court the social
worker said that K. was forming a positive attachment to his
prospective adopter and that he had unhappy memories of his life with
his parents. In her professional opinion direct contact would
undoubtedly cause K. stress and anxiety which would impact on the
stability of his placement. The guardian filed a report along similar
lines. It is unclear whether the applicant sought leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Child care proceedings
1. Emergency protection orders
Section 44(1) of the Children Act 1989 (“the
1989 Act”) gives a court the power to make an EPO in respect of
a child living with his parents if it is satisfied that there is
reasonable cause to believe that the child is likely to suffer
significant harm if he is not removed to accommodation provided by
the person applying for the order.
2. Care orders and interim care orders
Section 31 of the 1989 Act empowers a court to make an
order placing a child in the care of the local authority or putting
him under the local authority’s supervision. Pursuant to
section 31(2), such an order can only be made if the court is
satisfied:
“(a) that the child concerned is
suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of
harm, is attributable to–
(i) the care given to the child, or
likely to be given to him if the order were not made, not being what
it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond
parental control.”
94. Section 37(1) allows a court
considering whether to make a care order to direct the local
authority to undertake an investigation of the child’s
circumstances.
95. Pursuant to section 38(1), a court can
make an ICO where an application for a care order is adjourned or
where directions under section 37(1) have been given. Before making
such an order, the court must be satisfied that there are reasonable
grounds for believing that the circumstances with respect to the
child are as mentioned in section 31(2). ICOs are limited in time:
the first order may last no longer than eight weeks and subsequent
orders no longer than four weeks.
96. Section 38(6) provides that where the
court makes an interim care order, it may give such directions as it
considers appropriate with regard to the medical or psychiatric
examination or other assessment of the child.
97. When a court makes an order under the
1989 Act, section 1(1) provides that the child’s welfare shall
be the court’s paramount consideration. Section 1(2)
establishes a general principle that any delay in determining any
question with respect to the upbringing of a child is likely to
prejudice the welfare of the child. Section 1(3) provides that the
court should have regard in particular to;
“(a) the ascertainable wishes and
feelings of the child concerned (considered in the light of his age
and understanding);
(b) his physical, emotional and
educational needs;
(c) the likely effect on him of any
change in his circumstances;
(d) his age, sex, background and any
characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is
at risk of suffering;
(f) how capable each of his parents, and
any other person in relation to whom the court considers the question
to be relevant, is of meeting his needs;
(g) the range of powers available to the
court under this Act in the proceedings in question.”
3. Placement orders
Section 21(1) of the Adoption and
Children Act 2002 (“the 2002 Act”) provides for the
making of a placement order by the court authorising
a local authority to place a child for adoption with prospective
adopters. Pursuant to section 21(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.”
99. Section 21(3) permits the court to
dispense with the parents’ consent to the making of a placement
order. Section 52 provides:
“(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.”
100. Section 21(4) provides that a
placement order continues in force until it is revoked or an adoption
order is made in respect of the child.
101. 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.
102. Section 26(3) permits the parent of
child to make an application for contact with a child in respect of
whom a placement order has been made. Section 27(4) provides that:
“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.”
103. Section 1(2) of the 2002 Act 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.”
104. 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.”
4. Adoption
orders
105. 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.
B. Clarifications
of aspects of a judgment
106. It is the established practice of
family courts for the judge to invite representations as to any
factual errors in the judgment. The practice was described by the
Court of Appeal in Re T (Contact:
Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows:
“In a complex case, it might well be prudent, and
certainly not out of place, for the judge, having handed down or
delivered judgment, to ask the advocates whether there are any
matters which he has not covered. Even if he does not do this, an
advocate ought immediately, as a matter of courtesy at least, to draw
the judge’s attention to any material omission of which he is
then aware or then believes exists. It is well established that it is
open to a judge to amend his judgment, if he thinks fit, at any time
up to the drawing of the order. In many cases, the advocate ought to
raise the matter with the judge in pursuance of his duty to assist
the court to achieve the overriding objective ... ; and in some
cases, it may follow from the advocate’s duty not to mislead
the court that he should raise the matter rather than allow the order
to be drawn. It would be unsatisfactory to use an omission by a judge
to deal with a point in a judgment as grounds for an application for
appeal if the matter has not been brought to the judge’s
attention when there was a ready opportunity so to do. Unnecessary
costs and delay may result.”
107. This passage was cited with approval
by the Court of Appeal in Re M
(fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added:
“I wish to make it as clear as
possible that after a judge has given judgment, counsel have a
positive duty to raise with the judge not just any alleged deficiency
in the judge’s reasoning process but any genuine query or
ambiguity which arises on the judgment. Judges should welcome this
process, and any who resent it are likely to find themselves the
subject of criticism in this court. The object, of course, is to
achieve clarity and – where appropriate – to obviate the
need to come to this court for a remedy.
This process applies in cases involving
children in both public and private law as much as it applies in any
other case. I very much hope that in the future this court will not
be faced with matters which are plainly within the province of the
judge, and are properly capable of being resolved at first instance,
and immediately after the relevant hearing.”
C. The statutory
checklists and Article 8 in childcare cases
108. The
statutory checklists are set out in section 1(3) of the 1989 Act, in
respect of care order, and section 1(4) of the 2002 Act, in respect
of placement and adoption orders (see paragraphs 97
and 103 above).
109. In EH v
London Borough of Greenwich & Others
[2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was
asked to consider whether the judge had erred in failing to refer
explicitly to the statutory checklists in the 1989 and 2002 Acts and
to Article 8 of the Convention when making a care and placement
order. Mrs Justice Baron, delivering the lead judgment, noted:
“61. The judge was making a very draconian order.
As such, he was required to balance each factor within the checklist
in order to justify his conclusions and determine whether the final
outcome was appropriate. Accordingly, because this analysis is
entirely absent, his failure to mention the provisions of the
Children Act and deal with each part of Section 1(3) undermines his
conclusions and his order.”
110. As to Article 8, she continued:
“64. In a case where the
care plan leads to adoption the full expression of the terms of
Article 8 must be explicit in the judgment because, ultimately, there
can be no greater interference with family life. Accordingly, any
judge must show how his decision is both necessary and proportionate.
In this case what the judge said was ‘removing the children
from their Mother without good reason ... would be a tragedy for
them, quite apart from the mother’. With all due respect to
him, this does not demonstrate that he had Article 8 well in mind.
Whilst he decided that the experts apparently proffered no other
solution it is apparent from the manner in which this case unfolded
that they did not have the opportunity to make recommendations upon
the additional evidence which, I remind myself, amounted to one
sighting of the Father and Mother together in the street.
Consequently, it was even more incumbent upon him to consider
precisely why the family bond should be broken.”
111. Baron J considered that the judge
should have turned his mind to each of the provisions set out in
section 1(4) of the 2002 Act when considering whether to make a
placement order, and not truncated his considerations in one
paragraph. She continued:
“69. ... By so doing he
specifically failed to address these children’s particular
needs and the likely effect on them (throughout their lives) of their
ceasing to be a member of their original family. They have an
established attachment to a loving mother who, with targeted
assistance, might be able to provide some form of future mothering.”
112. Finally, on the established practice
of family courts for the judge to invite representations as to any
factual errors in the judgment, and the failure of the mother in that
case to do so, the judge considered that the omissions in the
judgment could not have been put right following that route.
113. Lord Justice Wall noted:
“95. ... There is no more
important or draconian decision than to part parent and child
permanently by means of an adoption order. It follows, in my
judgment, that if this is the course which the court feels
constrained to follow, the process whereby it is achieved must be
both transparent and must comply with both ECHR and the relevant
statutory provisions.
96. Once again, these are not hoops
imposed by Parliament and the appellate judiciary designed to make
the life of the hard-pressed circuit judge even more difficult than
it is already. They are not boxes to be ticked so that this court can
be satisfied that the judge has gone through the motions. They are
important statutory provisions, bolstered by decisions of this court
which require a judge fully and carefully to consider whether the
welfare of the child concerned throughout his life ... requires
adoption.”
114. He considered that, however
experienced the judge, it was wholly inadequate to deal with these
crucially important issues in a sentence or two, as the judge in that
case had done, observing:
“98. ... The judge does not
mention either Act (the Children Act 1989 and the Adoption and
Children Act 2002) nor does he make any reference to the rights
enjoyed by both parents and children under ECHR, nor does he mention
proportionality. In my judgment, these are serious defects which
vitiate the judgment and mean that this appeal must be allowed.
99. The answers to the criticisms I have
made are, as I understood them; (1) all these matters were put to the
judge so he must have had them in mind; and (2) all the professional
and expert evidence was to the effect that if the mother was a liar,
and had lied to the judge about her relationship with the father,
adoption was inevitable – therefore the judge was entitled to
take a short cut.
100. In my judgment, neither defence
meets the criticism ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the domestic courts’
refusal to order an assessment of her as a sole carer for her son and
their failure to have regard to all relevant considerations when
making a placement order violated her right to respect for her family
life as provided in Article 8 of the Convention, which reads as
follows:
“1. Everyone has the right to respect
for his private and family life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
a. The applicant
The applicant argued that in
failing to grant an assessment of her as a sole parent and in failing
to have regard to all relevant factors before making a care and
placement order in respect of K. the domestic authorities violated
her right to respect for her family life. She emphasised that the
Family Proceedings Court had heard live evidence from the parties and
had ordered that an assessment be carried out. In overturning this
decision, the County Court did not have the benefit of hearing live
evidence. It had before it a typed note of evidence before the Family
Proceedings Court prepared by the clerk (see paragraph 63
above). However, this note was so inadequate as to give rise to
confusion on key pieces of evidence regarding whether K. should
remain in foster care or be placed for adoption. In deciding that
there should be no assessment of the applicant, the County Court made
no reference to her Article 8 rights.
The applicant also argued that the making of the
placement order was fundamentally flawed as the correct procedure had
not been complied with. She considered that the placement proceedings
had been informally added to the proceedings in the Family
Proceedings Court and that, as a consequence, important procedural
safeguards had not been observed.
She further contended that before making a placement
order, the court was obliged to consider section 1 of the 2002 Act
(see paragraphs 103-104
above). The Family Proceedings Court did not do so because it decided
to order that a section 38(6) assessment be carried out and so was
not required to examine the request that a placement order be made.
In overturning that decision, the County Court judge focussed the
majority of his judgment on whether the Family Proceedings Court was
right to order that an assessment be conducted. Having concluded that
it was not, the judge then simply made a placement order (see
paragraph 82 above). He did not set out his
reasons with reference to the criteria stipulated in section 1(4) of
the 2002 Act (see paragraph 103 above).
The
Court of Appeal did not rectify the errors made by the lower court.
It indicated that any complaint about the peremptory nature of the
order should have been made to the County Court judge (see paragraph
86 above). In particular, it did not address the
appeal ground regarding consideration of the section 1(4) criteria,
save to say that omissions should have been brought to the attention
of the judge (see paragraph 87 above).
The
applicant disputed that any omissions could be remedied by an
application for contact or for revocation of the placement order. She
highlighted that K. had now been placed with a prospective adopter
and that the court had quite properly given precedence to the new
bonds that had started to form in that placement.
The applicant concluded that the placement order had
allowed K. to be placed with a prospective adopter, thus leading to
the severing of links with his natural family, without a proper and
reasoned explanation being provided. There had therefore been a
violation of Article 8 of the Convention.
b. The Government
The
Government considered that the decisions taken in the case were
proportionate and fell within the State’s margin of
appreciation given that, at each stage, all relevant circumstances
were taken into account and cogent reasons were given for the
decision reached. They emphasised that the domestic courts had had
direct contact with the persons concerned and that it was not the
role of this Court to substitute itself for the domestic authorities.
The Government disputed the applicant’s
contention that the correct procedures had not been followed prior to
the making of the care and placement order by the County Court. In
particular, it was clear from the evidence before the Court that the
applicant was well aware before the hearing in the Family Proceedings
Court that the local authority was seeking a care and placement
order.
The refusal of the County Court judge to allow an
assessment of the applicant as a sole carer was based on a thorough
analysis of the expert evidence, which included evidence of K.’s
own wishes and feelings. The decision was founded on the judge’s
conclusion that the applicant’s separation from P.C. was
unlikely to be maintained; that a further assessment of the mother
while K. remained in local authority care could not provide the
evidence required to displace expert conclusions that the applicant
lacked the parenting skills necessary to care for the child; and that
any delay would therefore not be in K.’s best interests.
The Government further contended that the County
Court judge did have regard to all relevant considerations before
deciding to make the placement order. In particular, he had before
him and took into account evidence as to K.’s wishes and
feelings and gave extensive and cogent reasons for his conclusion
that a placement order should be made. The Court of Appeal also gave
proper reasons for dismissing the applicant’s appeal.
The Government made a number of submissions in
support of their position. First, they contended that the local
authority, D.I. and the guardian had all made efforts to ascertain
and assess K.’s wishes and feelings about whether he should
return to his parents. In each case he had indicated that although he
wished to see his parents he would be scared unless social services
were present. Second, the County Court judge had concluded that the
separation of the applicant and P.C. was not genuine; in these
circumstances there was no point seeking K.’s views as to the
possibility of return to his mother alone. Third, there was nothing
on the face of the County Court judgment to indicate that the judge
had left K.’s wishes out of account in reaching its decision.
Fourth, there was nothing to suggest that the decision would have
been different had the applicant submitted that he lacked sufficient
information to make a placement order. Fifth, the applicant could
have, had she so wished, made that submission by taking advantage of
the judge’s invitation (see paragraph 82
above). Sixth, considering the evidence as a whole, it was clear that
each decision had been taken because on the basis of expert evidence
the courts considered that returning K. either to his parents or to
the applicant alone would cause harm and would not be in his best
interests. Finally, the Government pointed out that before any final
adoption order was made the court would be obliged again to consider
the matters set out in section 1 of the 2002 Act. They further noted
that the applicant could have applied, with the leave of the court,
to have the placement order revoked at any time before a placement
was made.
The
Government therefore invited the Court to find that there had been no
violation of Article 8 of the Convention.
2. The Court’s assessment
There
is no doubt that the decision to refuse a further assessment and to
make a care and placement order in the present case constituted a
serious interference with the applicant’s right to respect for
her family life within the meaning of Article 8 § 1 of the
Convention. It must therefore be determined whether the
interference was justified under Article 8 § 2, namely whether
it was in accordance with the law, pursued a legitimate aim and was
necessary in a democratic society.
As
to the lawfulness of the actions of the domestic courts, the Court
notes that the applicant, in her submissions, made reference to
alleged failures on the part of the authorities to comply with the
relevant procedures for the making of a placement order (see
paragraph 119 above). However, the Court is
satisfied, on the basis of the evidence before it, that the correct
procedures set out in the applicable legislation were followed and
that the County Court judge was entitled to make a placement order in
the case. The applicant also complained that the domestic courts did
not have regard to section 1(4) of the 2002 Act when making the
placement order (see paragraph 120 above).
While the Court does not rule out that such a complaint could give
rise to the question whether the measure was “in accordance
with the law” within the meaning of Article 8 § 2, it
observes that the applicant in the present case did not argue that
any issue as to the lawfulness, in Article 8 terms, of the measure
arose. In the absence of any submissions on the matter the Court is
therefore of the view that this complaint is more appropriately
considered in the context of the necessity and proportionality of the
measure. The Court therefore accepts that the actions of the domestic
authorities were “in accordance with the law”.
It
is further not disputed that the measures pursued the legitimate aim
of protecting the rights of others, namely those of K. The Court
must therefore examine whether the domestic authorities’
actions were necessary in a democratic society.
a. General principles
The
Court’s case-law regarding care proceedings and measures taken
in respect of children clearly establishes that, in assessing whether
an interference was “necessary in a democratic society”,
two aspects of the proceedings require consideration. First, the
Court must examine whether, in the light of the case as a whole, the
reasons adduced to justify the measures were “relevant and
sufficient”; second it must be examined whether the
decision-making process was fair and afforded due respect to the
applicant’s rights under Article 8 of the Convention (see K
and T. v. Finland [GC], no. 25702/94, § 154,
ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no.
38000/05, § 34, 30 September 2008; T.S. and D.S. v. the
United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and
O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March
2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07,
§ 134, 6 July 2010; and R. and H. v.
the United Kingdom, no. 35348/06, §§
75 and 81, 31 May 2011).
The Court reiterates that in cases concerning the
placing of a child for adoption, which entails the permanent
severance of family ties, the best interests of the child are
paramount (see Johansen v. Norway, 7 August 1996, § 78,
Reports of Judgments and Decisions 1996 III; Kearns
v. France, no. 35991/04, § 79, 10 January 2008; and R.
and H., cited above, §§ 73 and 81).
In identifying the child’s best interests in a particular case,
two considerations must be borne in mind: first, it is in the child’s
best interests that his ties with his family be maintained except in
cases where the family has proved particularly unfit; and second, it
is in the child’s best interests to ensure his development in a
safe and secure environment (see Neulinger and Shuruk,
cited above, § 136; and R. and H., cited above,
§§ 73-74). It is clear from the foregoing that family
ties may only be severed in very exceptional circumstances and that
everything must be done to preserve personal relations and, where
appropriate, to “rebuild” the family (see Neulinger
and Shuruk, cited above, § 136; and R. and H.,
cited above, § 73). It is not enough
to show that a child could be placed in a more beneficial environment
for his upbringing (see K and T., cited above, § 173; and
T.S. and D.S., cited above). However, where the maintenance of
family ties would harm the child’s health and development, a
parent is not entitled under Article 8 to insist that such ties be
maintained (see Neulinger and Shuruk, cited above, § 136;
and R. and H., cited above, § 73).
The identification of the child’s best
interests and the assessment of the overall proportionality of any
given measure will require courts to weigh a number of factors in the
balance. The Court has not previously set out an exhaustive list of
such factors, which may vary depending on the circumstances of the
case in question. However, it observes that the considerations listed
in section 1 of the 2002 Act (see paragraph 103
above) broadly reflect the various elements inherent in assessing the
necessity under Article 8 of a measure placing a child for adoption.
In particular, it considers that in seeking to identify the best
interests of a child and in assessing the necessity of any proposed
measure in the context of placement proceedings, the domestic court
must demonstrate that it has had regard to, inter alia, the
age, maturity and ascertained wishes of the child, the likely effect
on the child of ceasing to be a member of his original family and the
relationship the child has with relatives.
The Court recognises that, in reaching decisions in
so sensitive an area, local authorities and courts are faced with a
task that is extremely difficult. Further, the national authorities
have had the benefit of direct contact with all the persons
concerned, often at the very stage when care measures are being
envisaged or immediately after their implementation. There is
therefore a need to allow them a certain margin of appreciation in
deciding how best to deal with the cases before them and it is
accordingly not the Court’s task to substitute itself for the
domestic authorities but to review, in the light of the Convention,
the decisions taken and assessments made by those authorities in the
exercise of their margin of appreciation (see K and T.,
cited above, § 154; A.D. and O.D., cited above, §
83; Neulinger and Shuruk, cited above, § 138; and R.
and H., cited above, § 81). However, it must be borne in
mind that the decisions taken by the courts in this field are often
irreversible, particularly in a case such as the present one where a
placement order has been made. This is accordingly a domain in which
there is an even greater call than usual for protection against
arbitrary interferences (see B. v. the United Kingdom, 8 July
1987, § 63, Series A no. 121; X v. Croatia, no.
11223/04, § 47, 17 July 2008; and R. and H., cited above,
§ 76).
The margin of appreciation to be accorded to the
competent national authorities will vary in the light of the nature
of the issues and the seriousness of the interests at stake, such as,
on the one hand, the importance of protecting a child in a situation
which is assessed as seriously threatening to his or her health or
development and, on the other hand, the aim of reuniting the family
as soon as circumstances permit (see K and T., cited above, §
155). The Court has indicated that the authorities enjoy a wide
margin of appreciation in assessing the necessity of taking a child
into care. However, a stricter scrutiny is called for in respect of
any further limitations, such as restrictions placed by the
authorities on parental rights of access, and of any legal safeguards
designed to secure an effective protection of the right of parents
and children to respect for their family life, as such further
limitations entail the danger that the family relations between the
parents and a young child are effectively curtailed (see K and T.,
cited above, § 155; R.K. and A.K., cited above, §
34; and A.D. and O.D., cited above, § 83; R. and H.,
cited above, § 81). The making of a placement order in respect
of a child must be subject to the closest scrutiny.
As to the decision-making process, what has to be
determined is whether, having regard to the particular circumstances
of the case and notably the serious nature of the decisions to be
taken, the parents have been involved in the decision-making process,
seen as a whole, to a degree sufficient to provide them with the
requisite protection of their interests and have been able fully to
present their case (see Neulinger and Shuruk, cited above, §
139; and R. and H., cited above, § 75). Thus it is
incumbent upon the Court to ascertain whether the domestic courts
conducted an in-depth examination of the entire family situation and
of a whole series of factors, in particular of a factual, emotional,
psychological, material and medical nature, and made a balanced and
reasonable assessment of the respective interests of each person,
with a constant concern for determining what would be the best
solution for the child (see, mutatis mutandis, Neulinger
and Shuruk, cited above, § 139). In practice, there
is likely to be a degree of overlap in this respect with the need for
relevant and sufficient reasons to justify a measure in respect of
the care of a child.
The
need to involve the parents fully in the decision-making process is
all the greater where the proceedings may culminate in a child being
taken from his biological parents and placed for adoption (R. and
H., cited above, § 76).
b. Application of the general principles
to the facts of the case
The
applicant’s complaint comprises two aspects. First, she
complains about the refusal of the domestic courts to order an
assessment of her as a sole carer, which she contends constituted a
disproportionate interference with her Article 8 rights. Second, she
complains that the reasons given for making a placement order were
inadequate.
The
Court observes at the outset that the decision as to whether K.
should be raised by the applicant or by another family was
effectively taken at the stage at which the placement order was made.
The possibility of revoking the placement order and the prospect of a
future evaluation by reference to the criteria in section 1 of the
2002 Act (see paragraph 103 above) in the
context of an application for an adoption order under section 46 of
the 2002 Act (see paragraph 105 above) cannot
be relied upon as providing any kind of safeguard in the proceedings
leading to the making of placement order in respect of K. In
particular, once K. was placed with a prospective adopter, he began
to establish with her new bonds and his interest not to have his de
facto family situation changed again became a significant factor
to be weighed in the balance against his return to the applicant’s
care (see W. v. the United Kingdom, 8 July 1987, § 62,
Series A no. 121; and K and T., cited above, § 155).
It
is not disputed that the threshold criteria enabling the court to
make a placement order – namely that there were reasonable
grounds for believing that K. was likely to suffer significant harm
because of inadequate care – were met. The immediate question
for the domestic courts in the applicant’s case was whether to
make such an order or whether to order a further assessment which
could result in K. being returned to the applicant’s care.
The
Court’s starting point is the judgment of the Family
Proceedings Court. Although that court did not reach any conclusion
as to whether a placement order ought to be made, in its judgment it
explained that it accepted the welfare aspects of the Guardian’s
report, before indicating that it had reached a different conclusion
as a result of the applicant’s late position statement (see
paragraph 69 above). It accordingly ordered a
further assessment.
The
County Court subsequently overturned the order of the Family
Proceedings Court and made a placement order. The applicant does not
dispute that she was advised that the local authority and the
guardian were seeking a placement order from the County Court. It is
therefore for this Court to assess whether the County Court’s
reasons were relevant and sufficient, by reference to the general
principles set out above.
The
Court observes that the County Court judge began by emphasising that
any decision to order a further assessment had to be in the best
interests of the child (see paragraph 80 above).
In identifying K.’s best interests, the judge noted that any
further assessment would entail a degree of disruption to K.’s
foster placement and a risk of emotional harm should the assessment
break down. He considered that the duration of the assessment would
be too short to provide sufficient guarantees that the separation of
the applicant and P.C. would last (see paragraph 80
above). He reached the conclusion that “the evidence about the
mother was clear” and that an assessment of the applicant would
never be able to provide evidence that would be sufficient to justify
the refusal of a care order, given her shortcomings and the real risk
that she would resume her relationship with P.C. Thus the only effect
of the decision to order an assessment was to delay and jeopardise
the prospect of finding a long-term placement for K (see paragraph 81
above).
The
judge was clearly of the view that the resumption of the applicant’s
relationship with P.C. entailed a risk to K.’s well-being. His
conclusion that such resumption was likely and his negative view as
to the consequences for K. do not appear to be unreasonable having
regard to the history of the case and the various reports prepared in
the context of the proceedings, which made frequent reference to
P.C.’s controlling nature and the difficulties encountered by
the applicant in asserting herself (see paragraphs 29,
30, 39, 44
and 58 above). While, as the Court has explained
above, it is in a child’s best interests that his family ties
be maintained where possible, it is clear that in K.’s case
this was outweighed by the need to ensure his development in a safe
and secure environment (see paragraph 134
above). In this regard the Court observes that attempts were made to
rebuild the family through the provision of support for alcohol abuse
and opportunities for parenting assistance (see paragraphs 27
and 33 above). When the applicant indicated that
she had separated from P.C., she was given details of domestic
violence support that she could access (see paragraph 26
above). It appears that she did not access such support and
ultimately reconciled with P.C. on that occasion. The reports
prepared by the social worker, the guardian and D.I. highlighted the
difficulties encountered in trying to assist the family to address
concerns as a result of the parents’ failure to engage with the
authorities and, in particular, P.C.’s uncooperative stance
(see paragraphs 36-37, 41,
44-45, 47
and 58 above).
The
Court acknowledges that, in refusing the further assessment and
instead making a placement order, the County Court judge did not make
express reference to the relevant considerations arising under
Article 8 of the Convention (see paragraph 135
above) or to the various factors set out in section 1 of the 1989 Act
and section 1 of the 2002 Acts (see paragraph 82
above). However, as outlined above, it is clear that he directed
his mind, as required under Article 8 of the Convention, to K.’s
best interests and that, in reviewing the applicant’s
application for a further assessment, considered whether in the
circumstances rehabilitation of K. to his biological family was
possible. He concluded that it was not. In reaching that decision he
had regard to various relevant factors and made detailed reference to
the reports and oral evidence of the social worker, the guardian
(whose report was based on full consideration of the welfare
checklist) and D.I., all of whom identified the various issues at
stake (see paragraphs 78-81
above). Further, the Court notes that the applicant was invited by
the judge to bring to his notice anything that required his further
attention in court (see paragraph 82 above), but
that she failed to seek any clarification from him as to the reasons
for his decision.
It
is also of relevance that the applicant was able to seek a further
review of her case by the Court of Appeal. In this regard, the Court
observes that the Court of Appeal has recognised the need for a
careful balancing act to be conducted by reference to section 1 of
both the 1989 and 2002 Acts and to Article 8 of the Convention (see
paragraphs 109-114
above). It was satisfied in the applicant’s case that
the judge had reached a conclusion which was fully merited on the
evidence.
In the circumstances of the case, the Court considers
that the decision to make a placement order did not exceed the margin
of appreciation afforded to the respondent State and the reasons for
the decision, taking into account the concerns expressed by the judge
regarding the applicant’s ability to separate from P.C., were
relevant and sufficient. It is further satisfied that the applicant
was given every opportunity to present her case and was fully
involved in the decision-making process.
There
has accordingly been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
In
her written submissions to the Court dated 18 May 2011, the applicant
alleged for the first time that there had been a violation of Article
13 as a result of the decision of the Court of Appeal.
The
Court observes that the judgment of the Court of Appeal was handed
down on 24 November 2009. The applicant’s complaint under
Article 13 was therefore lodged outside the six-month period
stipulated in Article 35 § 1 of the Convention. In any event the
Court reiterates that the effectiveness of the remedy for the purpose
of Article 13 does not depend on the certainty of a favourable
outcome for the applicant (see K and T., cited above, §§
198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09,
§ 289, 21 January 2011). There is no indication that
Court of Appeal would not, in general, fulfil the requirements of an
“effective remedy” within the meaning of Article 13. The
complaint must accordingly be declared inadmissible pursuant to
Article 35 §§ 3 and 4.
FOR THESE REASONS, THE COURT
Declares unanimously the
complaint concerning Article 8 of the Convention admissible and the
remainder of the application inadmissible;
Holds by six votes to one that
there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 13 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the dissenting opinion of Judge De Gaetano
is annexed to this judgment.
L.G.
T.L.E.
DISSENTING OPINION OF JUDGE DE GAETANO
I
regret that I am unable to share the views of the majority in this
case on the question of the alleged violation of Article 8. To my
mind the most unorthodox way in which the placement order was made by
the Taunton County Court, and the cavalier way in which the applicant
was refused permission to appeal by the Court of Appeal, cumulatively
lead to a violation of Article 8. The majority decision, by invoking,
as it does in § 149, the concept of the “margin of
appreciation”, also raises a serious issue as to the extent to
which this Court should defer to the judgments of domestic courts,
especially when these do not purport to be in any way dealing with
Convention matters.
We
are here dealing with the placement for adoption not of a new born
or an infant, but of an 8 year-old boy who, up to the age of seven,
had lived with his parents, even if in a highly dysfunctional
environment. The placement order, as opposed to long-term fostering,
may in effect have been the best solution for the boy, but that is
entirely beside the point. What had to be assessed here is whether
the “important or draconian decision...to part parent and child
permanently by means of an adoption order” (to use the
expression found in para. 95 of the Court of Appeal’s judgement
in EH v. London Borough of Greenwich and Others, referred
to in § 109) was supported by cogent reasons emanating from the
same decision (in this case, the decision of the County Court). As
was stated by this Court in Saviny v. Ukraine (18
December 2008, no. 39948/06), at § 49,
“...notwithstanding a margin of appreciation
enjoyed by the domestic authorities in deciding on placing a child
into public care, severing family ties means cutting a child off from
its roots, which can only be justified in very exceptional
circumstances...A relevant decision must therefore be supported by
sufficiently sound and weighty considerations in the interests of the
child, and it is for the respondent State to establish that a careful
assessment of the impact of the proposed care measure on the parents
and the child has been made.”
See
also §§ 67 and 81 of Kutzner v. Germany (26 February
2002, no. 46544/99), and passim Moser v. Austria (21
September 2006, no. 12643/02) and Kurochkin v. Ukraine (20
May 2010, no. 42276/08). More significantly the Court of Appeal
itself has, in EH v. London Borough of Greenwich and Others,
already referred to, laid down very stringent requirements as to the
contents of a court decision placing children in care or for
adoption (see §§ 109 to 114 of the majority decision) –
although it must be said that this judgment was delivered on 9 April
2010, that is four months after the applicant was refused
leave to appeal (on 24 November 2009). Regrettably the Court, in its
majority judgment, has given no weight whatsoever to this April 2010
judgment of the Court of Appeal.
Although
before the Family Proceedings Court there was both an application for
a (full) care order and an application for a placement order, that
court in effect dealt only with the former, and then only to
the extent of ordering an interim care order with a direction for
further assessment. In the judgment of the Family Proceedings Court
there is no specific reference to section 1(3) of the Children Act
1989, but there is at least a reference to section 31(2) of the same
when that court states:
“Before we make care orders we have to be
satisfied that the threshold criteria is met. That is we have to be
satisfied that the child has suffered, or is likely to suffer
significant harm and that the harm, or the likelihood of harm, is
attributable to the care given to him, or likely to be given to him
if the orders were not made, not being what is reasonable to expect a
parent to give.”
There
is no reference whatsoever, whether direct or oblique, to the
provisions of the Adoption and Children Act 2002, under which a
placement order may be made. The reference to the “welfare
checklist” in the part of the Family Proceedings Court judgment
quoted in § 69 is clearly a reference to the checklist under the
1989 Act, to wit section 1(3).
The
local authority and the guardian appealed. Both specifically sought
from the County Court a final care order and a placement
order. The judgment of the County Court of 16 June 2009 is strange,
to put it mildly. After rehearsing all the evidence – including
that which was before the first court – in nine typed pages and
with sole reference to the making of a care order, that court goes on
to say in para. 16 of its judgment:
“However the complaint in the present case is that
the justices were wrong not to have made a care order at the
conclusion of the hearing because all the evidence to support the
making of a care order was present, and because delaying their
decision was detrimental to K.’s better interests.”
In
para. 17 there is again no reference whatsoever to the 2002 Act.
Then, by some sort of side-stepping movement (or convoluted lateral
thinking), the last part of para. 18, which is in effect the end of
the substantive part of the judgment, cryptically says:
“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 Kyle by way of adoption...In these circumstances the decision of
the justices must be categorised as wrong, and must be set aside. The
appeal will be allowed. I am satisfied that the conditions for making
a care order exist and accordingly I 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.”
This
is the first and only reference to a placement order in the County
Court’s judgment and the first and only reference to the 2002
Act. There is no reference, specific or otherwise, to the checklist
in section 1(4) of the 2002 Act. There is no reference to the rights
enjoyed by both parents and children under the Convention, to Article
8 or to any principle of proportionality. Whatever the guardian may
have analysed and recommended in her report (§ 53), it was for
the judge to apply independently his mind to the relevant and
sufficient considerations and to show unequivocally in the judgment
that he had done so.
The
Court of Appeal and the majority judgment of this Court (see § 147)
come to the rescue with an act of faith – praestet fides
supplementum. Although the decision of the Court of Appeal
dismissing permission to appeal characterised the County Court
judge’s interim order (referred to in § 77) as having been
made “in bizarre form”, the Court of Appeal nonetheless
somehow assumes that the judge had at some stage applied his mind
properly in considering all the matters mentioned in section 1(4) of
the 2002 Act:
“Nor do I think in the end that there is any
substance [in the argument] 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 appellant] 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
July [recte: 6 June].”
The
same gratuitous assumptions are made by the Court in § 147.
Whatever
the failings (if any) of the applicant’s legal team before the
County Court, the fact remains that the judgment of that court did
not expressly spell out relevant and sufficient reasons for
the measure that was being taken by the making of the placement
order. The issue is not merely one of form or procedure: there can be
no more draconian measure in the context of the relationship between
parent and child than an order which permanently severs family ties.
The need for safeguards against arbitrary, or even merely unjustified
or unnecessary interference, is compelling (see § 136),
and one such safeguard is the provision of clear and detailed
reasoning in the judgment demonstrating not only that the child’s
best interest and other factors have been weighed in the balance, but
also that the domestic criteria for the making of the relevant order
have been carefully considered and scrupulously applied. The County
Court judgment is lacking in all this.
It
should also be borne in mind that the Court declared the complaint in
respect of Article 8 admissible (and with that I agree). This means
that whatever remedies were available to the applicant as are
mentioned in the Court of Appeal’s decision of 24 November
2009, these were relevant, if at all, at the domestic level, but
should not been taken into consideration by this Court. In any case,
the “remedy” of requesting the judge to, as it were, beef
up his reasoning after the judgment has been delivered (which seems
to be more than just correcting mere factual error, spelling
mistakes, numbers etc), thereby allowing the judge to “make up”
for substantial mistakes even in his assessment of the facts or of
the law, seems a very odd way of administering justice.
Finally,
the doctrine of the margin of appreciation, and the concomitant
doctrine of quatrième instance, when applied to
judicial decisions mean no more and no less than that the domestic
courts’ decisions will, as a rule, not be queried as to the
evaluation of the facts and evidence before them or as to the
interpretation of domestic law. These doctrines do not mean or imply,
nor should they be applied in such a way as to suggest that they so
mean or imply, that this Court is absolved from its supervisory duty
of ensuring that domestic courts’ judgments meet, in form or in
substance, all the Convention criteria. These doctrines should be
applied evenly across the board, and irrespective of whether the
legal or judicial system concerned can trace its lineage back to the
post-Soviet era or to the meadow at Runnymede.
