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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html Cite as: [2012] EWHC 2190 (Fam), [2012] Fam Law 1316, [2013] 1 FCR 54, [2013] 2 FLR 987 |
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This judgment is being handed down in private and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
FAMILY DIVISION
Wellington Street, Leicester. LE1 6HG Handed down at Birmingham Civil Justice Centre |
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B e f o r e :
____________________
Coventry City Council |
Applicant |
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- and - |
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C, B, CA, CH |
Respondents |
____________________
John Vater, QC (instructed by Kundert Solicitors LLP) for the Mother (C)
Miss Heledd Llwyd Williams (Junior to Mr. Vater)
Mr. Michael Keehan, QC (Instructed by Varley Hibbs Solicitors) for the Children
Mr Robin Lewis (Junior to Mr. Keehan)
Miss Alison Johnson (Children's Guardian, CAFCASS, Coventry)
Hearing dates: 19th, 20th, 21st June 2012
____________________
Crown Copyright ©
The Hon. Mr. Justice Hedley :
PART I – The Issues
PART II – The Facts
"I have found this a very difficult report to write because I do like C and believe that I have a good working relationship with her. P also has presented as being very amiable and co-operative but I have to put this aside and consider what is best for CA and I cannot recommend that she be placed in their care for all of the reasons outlined in this report. What concerns me greatly however is how will C ever be allowed to parent a child unless she receives the input that is so desperately required? Is this young woman effectively being written off as a parent for now and for evermore because if so she and P need to know. C has obviously given thought to having a child with P but would this mean that proceedings commence again? I understand a considerable amount of money has already been invested into C (and CA's father) and in times when budgets are very tight decisions are made on the projected outcomes. What I would like to see is some very practical input made into C with P, and utilise his strengths and experience to support her before the inevitable happens and she becomes pregnant again."
PART III – The Care and Placement Applications
PART IV – The Human Rights Claim
PART V – The Use
of Section 20 Agreements
a) to understand the information relevant to the decision,
b) to retain that information,
c) touse
or
weigh
that information as part of the process of making the decision, or
d) to communicate his decision…
4) The information relevant to a decision includes information about the reasonably foreseeable consequence of –
a) deciding one way or the other, or
b) failing to make the decision.
i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.
ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity
to do so.
iii) In taking any such consent the social worker must actively address the issue of capacity
and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother's
capacity
at that time to
use
and
weigh
all the relevant information.
iv) If the social worker has doubts about capacity
no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.
v) If the social worker is satisfied that the person whose consent is sought does not lack capacity
, the social worker must be satisfied that the consent is fully informed:
a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all 'yes', no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.
vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.
viii) In considering that it may be necessary to ask:
a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.
x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.
PART IV – Conclusions