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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (A Child), Re  EWCA Civ 2512 (08 August 2018)
Cite as:  EWCA Civ 2512
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ON APPEAL FROM CENTRAL LONDON FAMILY COURT
Strand, London WC2A 2LL
B e f o r e :
LADY JUSTICE KING
LORD JUSTICE DAVID RICHARDS
|IN THE MATTER OF|
|S (A CHILD)|
Tel No: 020 7404 1400 Email: firstname.lastname@example.org (Official Shorthand Writers to the Court)
Mr M Richardson (instructed by Burke Niazi) appeared on behalf of the Second Appellant Father
Mr T Parker (instructed by Legal Services, London Borough of Islington) appeared on behalf of the Respondent Local Authority
Ms K Tompkins (Instructed by Creighton and Partners) provided written submissions on behalf of the Child's guardian
Crown Copyright ©
Lady Justice King: :
i) had jurisdiction to make the order sought and;
ii) was in any event wrong in his approach to the application. In particular, should the judge have referred to and applied the protocol in Re: DE (Child) under a Care Order; Injunction under Human Rights Act 1998  EWFC 6;  1 FLR 1001 ("Re: DE") relating to cases where a local authority wishes to remove a child to foster care who is currently placed at home under a care order.
"For all those reasons, I consider that the welfare of [S] demands that, if at all possible, he stay in the care of his mother and the wider family. If at all possible, it requires his parents to stay away from alcohol and it requires his parents to stay away from each other. That is not an easy thing to ask of anyone. 74. You have gone a long way down that road. It has been said that your motivation is caused by compulsion. This is arguable but I know many psychiatrists who would say that it does not matter what causes the motivation, motivation is important and the important thing is that it sticks. I am going to be making a Care Order subject to many conditions, subject to written agreements, subject to court orders and subject to you being honest not only with yourselves but with each other, with [S], with [H] and with the local authority. I believe you can do it but if you do not there is only one place where this matter will go and you will have both lost your son."
"If [the mother] is aware of [the father] drinking alcohol, or if there are any incidence of direct or indirect domestic violence, she should inform social care."
"Talked to mother. Had two beers last night. First time for a long time. Father came to her house as worried about son. Mother said she asked him to leave but he hit her and she called the police."
"Due to the significant risk posed to [S] by you not being abstinent from alcohol and from other domestic violence perpetrated on you by [the father] and any contact between [the father] and you, in relation to your failure to inform the Local Authority or the police of at least two occasions in December 2017 when you subsequently alleged to the police on 30th December 2017 that you had been subjected to domestic violence from [the father], the Local Authority has determined that it is necessary to remove [S] from your care to foster care and that there is no other means of safeguarding him."
"5. THE APPLICATION: The application made by the applicant mother is for the discharge of the care order made by this Court on 26th May 2017 and for the Court to use its inherent jurisdiction to return the child to her care.
6. JURISDICTION: The court is satisfied it has jurisdiction in relation to the child as he is habitually resident in England Wales.
TODAY'S HEARING: was to determine whether the court would direct the Local Authority to return the child, [S], to the care of his mother."
"12. THE PARTIES' POSITIONS: The Applicant Mother seeks the return of [S] to her care.
The Local Authority seeks to keep the child in care and not to have him returned to his mother's care. They are carrying out assessments of relatives of the mother who reside in Australia.
The 2nd Respondent father supports the mother's application.
The Guardian supports the position of the Local Authority."
"While a care order is in force the court's powers, under its inherent jurisdiction, are expressly excluded: section 100(2)(c) and (d). Further, the court may not make a contact order, a prohibited steps order or a specific issue order: section 9(1)."
"71. It can be stated without question that once a full care or supervision order is made the family courts' functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued."
"33. Since that case, the decision of the Supreme Court in Re B  UKSC 33 and the series of cases decided in the Court of Appeal in 2013 leading to the decision in Re B-S (Children)  EWCA Civ 1146 have changed the landscape for decision-making about children who are the subject of care proceedings. It is now clear, in the words of Baroness Hale of Richmond in Re B, supra, at paragraph 215, that:
'…an order compulsorily severing the ties between a child and her parents can only be made if 'justified by an overriding requirement pertaining to the child's best interests'. In other words the test is one of necessity. Nothing else will do.'
Any local authority and court making decisions about the long term future of children must therefore address all the options which are realistically possible and analyse the arguments for and against each option before coming to a decision: Re B-S, supra.
34. To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.
35. While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children)  EWCA Civ 822. The same test should also apply when a local authority's decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child's welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family's Article 8 rights."
"To avoid the problems that have arisen in this case, the following measures should be taken in future cases.
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days' notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.
(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.
(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.
(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child's welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child's welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.
(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.
(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child's welfare requires his immediate removal from the family home."
"So if she was drinking beers 18 hours after eating nothing on an empty stomach, they may well have had an influence on her disproportionate to the quantity."
"So we have three assaults in three weeks. [The mother] is, unfortunately for her, telling the truth when she said that the police officer and therefore 30 December is not an isolated incident in the relationship between her and [the father]... So there was that; there was direct contact on at least, to my mind, three known occasions during which [the mother] was assaulted."
"I have already found that there has been at least three incidents when he has assaulted her. There may have been, and I do not know, other occasions when he has come to the property."
"She allegedly had failed to keep to the written agreement and that she has put the child at risk. That is the issue. It is simple as that. It is a very easy, very short and very small issue."
"I am not taking any notes of anything to do with what went on in the hospital because it is irrelevant to my decision-making process at this stage."
The Grounds of Appeal
"the court failed to carry out a full assessment of the risk to the child should he be returned to the care of his mother to the level required when considering what is likely to be the permanent removal of the child from the care of his mother. The court failed to consider the full background of the mother's care of the child and the strength of her ability to care for him. The court was given no evidence of protective measures that were available to enable the child to remain in the care of his mother and therefore the court failed to consider whether the removal of the child was the only viable, or least interventionist, option open to it."
"that the court made findings of fact against the mother by ignoring the written statement of the father which was unchallenged by any party in cross-examination."
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Tel No: 020 7404 1400