Human rights – Local government decisions – Placement orders – Risk to children

Re A (children) sub nom EH v (1) X London Borough Council (2) AA (3) Rea & Rha (by their guardian) [2010] EWCA Civ 344: CA (Civ Div) (Lady Justice Smith, Lord Justice Wall, Mrs Justice Baron): 9 April 2010

The appellant mother (M) appealed against a decision of the judge granting the first respondent local authority a full care order and placement order in respect of her children. One of the children had been admitted to hospital as a baby with a fracture injury that was diagnosed as being non-accidental. Neither parent accepted that the injury was non-accidental. The children were immediately taken from their parents’ care and placed with their maternal grandmother.

A later fact finding hearing determined that the baby’s injury had probably been caused by her father (F) and that M had failed to protect the baby and take her to hospital promptly. That judge also found that M was a warm and loving mother and that, apart from the fracture injury, there was no evidence that the children had suffered any harm. The local authority’s fixed preference was that the children should be placed away from M. As a consequence of that preference it did not actively support M in urging her to separate from F. Moreover, it did no work with her in regard to her feelings around separation or its impact upon the need to keep the children safe. M purported to separate from F and went to live at a women’s refuge. Two experts and the children’s guardian provided reports to the effect that the parents’ separation was genuine and that M acknowledged, in large measure, that F was a danger to the children. However, at the care hearing the local authority sought to rely on eyewitness evidence of M and F having been seen together.

The judge found that M had had contact with F on a number of occasions and that they were in a continuing relationship. He further held that it was in the interests of the children to approve the local authority’s care plan for adoption and made care orders to that effect.

M contended that the judge had: (1) erred in his finding of fact that M and F remained in a continuing relationship with each other; (2) failed to refer explicitly in his judgment to the provisions of the Children Act 1989, the Adoption and Children Act 2002 or article 8 of the European Convention on Human Rights and, therefore, implicitly had to have failed either to carry out the necessary balancing exercise or apply the relevant provisions as required by the legislation; (3) failed to consider whether it was appropriate to make any contact order pursuant to section 26 of the 2002 act.

Held: (1) It was apparent that the judge had not given himself a Turnbull direction in relation to certain eyewitness identification evidence and he should have done so. Despite that failure, there was sufficient material before the judge for him to form the opinion that M and F had been seen together on one occasion and that M had lied to him about that. However, the judge should have gone on to consider why M might have lied and whether the whole of the evidence was capable of proving a continuing relationship about which she had lied consistently over time. If the judge had undertaken that analysis, he would have realised that the only credible evidence was to the effect that M had been with F on one occasion in a crowded shopping street. While her denial might have demonstrated that she could never be trusted to work honestly with professionals for the benefit of the children, there could have been other explanations and he should have considered them.

(2) It was apparent that the judge had not mentioned either the 1989 act or the 2002 act or made any reference to the rights enjoyed by both the parents and the children under the Convention, neither was any mention to proportionality made. That absence of analysis was a serious defect which vitiated the judge’s judgment, P (Children) (Placement Orders: Parental Consent), Re [2008] EWCA Civ 535, [2009] PTSR 150, B (Children) (Care: Interference with Family Life), Re [2003] EWCA Civ 786, [2003] 2 FLR 813 and G (Children) (Residence: Same Sex Partner), Re [2006] UKHL 43, [2006] 1 WLR 2305 applied. In particular, in a case where a care plan would lead to adoption, the full expression of the terms of article 8 had to be explicit in the judgment because there could be no greater interference with family life. Accordingly, any judge had to show how his decision was both necessary and proportionate, B applied.

(3) The judge was under a duty to make the right order for the children and he should have considered whether it was appropriate to make any contact order pursuant to section 26 of the 2002 act. The omissions in his judgment could not be put right by any amendment, M (Children) (Fact-Finding Hearing: Burden of Proof), Re [2008] EWCA Civ 1261, [2009] 1 FLR 1177 considered. In the circumstances, the judge’s final care and placement orders would be set aside and the matter remitted for a fresh final hearing.

(4) (Per curiam) It was vital that a non-abusive parent, such as M, should receive proper support from a local authority at an early stage provided that she had sufficient qualities to be a good parent in the absence of the known abuser.

Appeal allowed.

Deborah Eaton QC, Margo Boye (instructed by Cook Taylor) for the appellant; Lucy Theis QC, Helen Soffa (instructed by in-house solicitor) for the first respondent; David Vavrecka (instructed by Hodge Jones & Allen) for the third and fourth respondents.