Public law children cases: improving parental situations, robust case management and judicial pressure
Georgina Dalton rounds up the latest children law cases, including rulings on improvements to parents' situations, unfair judicial pressure, and deprivations of liberty of 16-17 year olds.
E (Through Her Children’s Guardian) & Anor v A Mother & Anor [2019] EWCA Civ 1557
Court of Appeal, Floyd, Lindblom and Baker LJJ, 12 September 2019
This appeal concerned a child aged 10 months who had been subject to an interim care order since birth. An appeal was brought by a local authority and the child’s guardian in relation to the refusal of a placement order by the trial judge. The judge had indicated that the parents could undertake work in the following 12 to 15 months which would enable them to resume care for their child. The parents of E had suffered with drug and alcohol problems as well as domestic abuse. The trial judge stated that the parents had however made significant improvements to their situation. The judge felt that the ‘nothing else will do’ test had not been established by the local authority and so he made a care order alone.
In the Court of Appeal, Baker LJ reached the conclusion that the judge at first instance was deficient in his assessment of the evidence and application of the legal principles in this case. The judge’s assessment of the situation was erroneous as the small improvements did not constitute an overall improvement in the parent’s situation. Baker LJ cited the Family Procedure Rules which make it clear that domestic violence is a fully recognised and accepted risk, and this was not given sufficient recognition by the trial judge in this case. Although Baker LJ agreed with the trial judge in that adoption should be the last resort, he found it difficult to see any case where it would be appropriate to wait 18 months for a decision to be made regarding a 7 month old child; such delay is likely to prejudice the welfare of the child. The matter was remitted to be determined by another circuit judge.
R-B (A Child) [2019] EWCA Civ 1560
Court of Appeal, Floyd, Baker and Rose LJJ, 2 July 2019
This case concerned an appeal by S the mother of J now aged 13 months against a care and placement order. A care order in the past had placed J and S in a mother-and-baby foster placement; it was within these placements that concerns were raised about the care S was providing for her child. The local authority filed a final care plan alongside an application for a placement order. S was initially opposed to the plan for adoption. After a discussion on the unlikelihood of S being able to care for J at this time, HHJ Black requested that S go outside and talk about her options. On resumption of the proceedings, counsel for S indicated that the mother’s position was now that she neither consented to nor opposed the making of the order sought. The care and placement order was made.
An appeal was filed against the placement order, the grounds of appeal expressed that the judge had failed to provide adequate reasons for making the order, that the mother neither consented nor opposed the making of the order and thirdly that the judge placed unreasonable pressure on S to change her position. The purpose of the appeal was to consider the lawfulness of the process before the judge in the family court. In the Court of Appeal, Lord Justice Baker in giving the substantive judgment, held that the line between robust and vigorous case management and unfairness had been crossed. What happened at trial constituted an imposition of undue pressure on S. The appeal was therefore allowed on the third ground. Baker LJ also stated that the judgment by HHJ Black did not contain any analysis of the reasons why the order was made, this was a manifest infringement of due process. The applications for care and placement orders had to be heard by another judge.
D (a child) [2019] UKSC 42
Supreme Court, Hale, Carnwath, Black, Lloyd-Jones and Arden LJJ, 26 September 2019
D was born in 1999 and throughout his life had been diagnosed with attention deficit hyperactivity disorder, Tourette’s syndrome and Asperger’s syndrome and so lacked the mental capacity to make decisions himself. At the age of 14, D was living at a hospital where the external doors were locked and he had to be accompanied if he left the grounds. The High Court held that this arrangement constituted a deprivation of liberty however D’s parents consented, and this was a proper exercise of their parental responsibility.
At the age of 16, D was in a residential placement where he was once again not allowed to leave the premises unless agreed and he was subject to constant supervision. The issue in the proceedings at this stage was whether it was within the scope of parental responsibility to consent to living arrangements for a 16-17 year old child which would normally amount to a deprivation of liberty under article 5 ECHR. The trial judge held that the parents continuing consent could not be relied upon after D turned 16. The Court of Appeal then overturned this decision in 2017 leading to an appeal by the Official Solicitor to the Supreme Court. The Supreme Court by a majority of 3 to 2 allowed the appeal. Lady Hale stated that parental responsibility for a child aged 16-17 does not cover authorisation of the confinement of a child and deprivation of their liberty, therefore valid consent was still required to comply with article 5.
These case summaries are produced by Georgina Dalton, who was recently successful in her application for pupillage at Spire Barristers commencing in September 2020. The summaries first appeared in the set's Family Law Newsletter, edited by Ashley Lord and Naomi Hartridge.
