Court of Appeal rejects appeal by council over ruling reuniting mother and child in different residential unit

A local authority has failed in an appeal over a judge’s decision that a mother and child should be reunited in a different residential unit.

The appeal in C (A Child : Interim Separation) [2020] EWCA Civ 257 concerned a baby who Lord Justice Peter Jackson called Rosie (not her real name). She is now 5 months old and was cared for by her mother under supervision in a residential unit until 16 January, when she was placed in foster care.

On 31 January, HHJ Sharpe decided after a two-day hearing at Liverpool Civil and Family Court that the mother and child should be reunited in a different residential unit.

From that decision the local authority appealed with permission of Baker LJ. The appeal was supported by Rosie's Children's Guardian.

The background to the case was that the mother, who is in her late 20s, had had a very difficult childhood. She had two older children she was unable to care for. She had a longstanding drug addition, a chaotic lifestyle and a potentially abuse relationship with the child’s father.

Rosie experienced drug withdrawal symptoms until she was four weeks old as a result of the mother’s use of hard drugs until the seventh month of pregnancy.

By 2017 the mother’s drug use had led to the need for one leg to be amputated, so that she now used a wheelchair.

In these circumstances, Lord Justice Peter Jackson said, care proceedings were inevitable and an interim care order was made. “[D]espite the unpromising history the local authority creditably moved to support the mother in the hope that Rosie could remain with her.”

The council found a residential unit offering high levels of supervision and support and the mother and child moved there in September 2019. A report produced by the unit in December showed that the mother had maintained abstinence from drugs and had showed good capability in relation to most practical tasks. It said that concerns raised (such as resistance to advise and inconsistency in approach to safety issues) were not at such a level that would warrant separation of Rosie from her mother’s care.

The unit's recommendation, which was accepted by all, was that Rosie should remain in her mother's full-time care in a mother and baby foster placement or a supported living arrangement, in each case with a high level of support. The unit agreed to keep them until such a placement could be found.

On 13 January an incident occurred that brought the placement to an end. After getting out of her wheelchair to get a dummy, the mother slipped while holding Rosie. She nearly fell on top of her baby. Though the mother was shaken and upset, neither she nor Rosie was injured.

For the unit and the local authority, this was the last straw, HHJ Sharpe said. The authority applied for the court’s authorisation for separation. Rosie was placed in foster care, with contact five times a week.

The mother sought Rosie’s return, having found an alternative residential placement.

HHJ Sharpe asked himself whether the facts amounted to an imminent risk of serious harm and whether removal was proportionate to the risks of the child staying in the mother’s care. He said that he reached the clear conclusion that this test was not made out.

The judge described the incident as a pure accident. The use of a sling would not have removed all risk. Had the mother not fallen, her conduct on 13 January would have passed without comment or concern. There was clear evidence of positive attachment and it was important to enable that to develop. What mattered was the mother’s willingness to engage. The mother had made promises before, but the experience of separation had been the ‘kick up the backside’ that she needed to implement rules fully in future.

The council appealed. It argued that:

1. The judge identified all the relevant features of the evidence but his conclusion that there was not a likely or imminent risk of serious harm was perverse. He wrongly treated the fall as an isolated incident rather than an accident waiting to happen. The judge should have accepted the Guardian's opinion that the mother's evidence showed that she had not learned from her mistakes and could not commit to the level of engagement needed to safeguard Rosie. He should not have accepted the mother's evidence and was wrong to place reliance upon her having learned her lesson.
2. The safeguards that were available in the alternative placement were inadequate, in particular because they did not have complete CCTV coverage. If Rosie could not be kept safe in her mother's care in the original unit, with its intensive level of supervision, she could not be kept safe in another placement.

Lord Justice Peter Jackson said he did not consider these arguments persuasive.

He said: “The judge's decision was not wrong. He applied the law correctly and balanced up the risks and benefits of the available options. He reached a reasoned decision that was clearly open to him on the evidence. He was entitled to find that it was not necessary for separation to take place at what is a critical stage, both in the development of the child-parent bond and in the proceedings that will determine Rosie's future.”

Lord Justice David Richards and Lord Justice Lewison agreed.