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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> RCW v A Local Authority  EWHC 235 (Fam) (12 February 2013)
Cite as:  EWHC 235 (Fam)
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IN THE MATTER OF THE HUMAN RIGHTS ACT 1998
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|A LOCAL AUTHORITY
Lee Pearman (instructed by Local Authority Solicitor) for the Defendant
Hearing dates: 8 February 2013
Crown Copyright ©
The Hon. Mr Justice Cobb :
|4 January 2013||RCW admitted to hospital|
|8 January 2013||Operation to remove the tumour|
|18 January 2013||LBX is informed by a friend of RCW that RCW had lost her sight|
|22 January 2013||LBX hold the first planning meeting in relation to the placement of SB; it starts to make plans for SB (which include a "parallel" plan – i.e. that SB should either remain with RCW or be placed with an alternative adoptive family (see Mr. M statement)|
|24 January 2013||RCW is discharged from hospital|
|24 January 2013||A social worker is waiting at RCW's home at the time of her return from hospital; she makes some assessment (see below)|
|25 January 2013||Social worker visit (2)|
|30 January 2013||Social worker visit (3)|
|30 January 2013||LBX holds a second planning meeting; it reaches a conclusion that SB should be removed from the care of RCW|
|30 January 2013||A worker from LBX telephones RCW (after office hours) and informs her of this decision. RCW recalls that the LBX worker (unknown to her) had commented that the authority had "decided to move [SB] on"|
|4 February 2013||RCW's solicitors write to LBX indicating RCW's intention to apply for an adoption order; letter sent by fax (acknowledged on 6 February)|
|4 February 2013||LBX writes to RCW indicating intention to remove SB from RCW's care|
|5 February 2013||a.m. RCW's solicitor attends at the Principal Registry of the Family Division and lodges an application for adoption|
|5 February 2013||p.m. RCW receives the 4 February letter from LBX with its notice of their intention to remove SB from her care|
|7 February 2013||LBX writes to RCW's solicitors re-stating its intention to remove SB on 12 February, and advising that RCW will be committing a criminal offence if she does not do so|
|8 February 2013||Application (on notice) in the Urgent Applications court before Cobb J for injunctive relief|
i) As indicated above, RCW was actually entitled to make her application for adoption on the day she was admitted to hospital for the operation, even though she did not do so;
ii) The only direct assessment undertaken by LBX of RCW and SB following the operation (certainly the only assessment relied on for present purposes) appears to have been on 24 January 2013, the very day when RCW was discharged from hospital after her operation. The social worker was waiting at RCW's home as RCW returned from the hospital. The observation at that meeting is recorded as follows:"at one point [SB] was given to [RCW ]to hold. After some time, [SB] appeared restless and attempted to be free. [RCW] turned [SB] towards her and [SB] tried to engage with [RCW]'s facial expressions, such as smiling. When these were not reciprocated [SB] began to bat RCW's face with her hands. This interaction is a small indicator of the difficulties which [RCW] is most likely to face in her efforts to build an attachment with [SB]"
iii) There is a possibility that RCW's adoption application was actually issued by the Principal Registry before LBX effected notice of the intention to remove SB from RCW's care.
"Where a child is placed for adoption by an adoption agency, and the agency –
(a) Is of the opinion that the child should not remain with the prospective adopters, and
(b) gives notice to them of its opinion
The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency".
(a) an adoption agency gives notice under subsection (2) in respect of a child,
(b) before the notice was given, an application for an adoption order … was made in respect of the child, and
(c) the application (…) has not been disposed of
Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders."
"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) Bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) Rely on the Convention right or rights concerned in any legal proceedings
But only if he is (or would be) a victim of the unlawful act."
i) She and SB are prima face entitled to the protection of section 35(5) because her application to adopt was "made" before she received notice of the intention to remove;
ii) Even if that statutory protection is not afforded to her, any removal under section 35(2) would infringe her (and SB's) rights under article 8 ECHR. RCW and SB have established a home together; RCW regards SB as her daughter, and by all indications SB regards RCW as her mother. One of the witnesses whose statements I read referred to SB as "finding her home" once she is in RCW's arms. It is argued forcefully that LBX has not 'grasped' this important point, or (if it has) it has attached no or no appropriate weight to it;
iii) RCW was not involved in (or invited to be involved in) any of the decision making of LBX; she has not had an opportunity to be heard, either fairly or at all, on the issue of the removal of SB from her care. She was unaware that the meeting on 30 January 2013 had been arranged for the authority to make the critical decision about the future placement of SB; on the contrary, she had been informed by the social worker that this would simply be a 'review' meeting. In these respects she contends that her rights under article 6 have been infringed. Although not referred to in argument before me, I have in mind what Munby J (as he then was) said in the case of L (Care: Assessment: Fair Trial), Re  EWHC 1379 (Fam)  2 FLR 730, FD), when summarising the law by reference to domestic and European case law:"… the essential principle is clear. At the end of the day fairness is something to be assessed — whether for the purposes of Art 6(1) or Art 8 — having regard to "the particular circumstances of this case" ...Re M — emphasis added). And one has to evaluate the process or the proceedings (as the case may be) "considered as a whole" (Mantovanelli), assessing matters "overall" (Scott) and "having regard to all circumstances" (Buchberger).In this respect, I have also considered carefully the comments of Charles J in DL and ML v Newham London Borough Council and Secretary of State for Education Intervening  EWHC 1127 (Admin)  2 FLR 1133; in that case, Charles J indicated that the scheme under section 35(2) envisaged that problems with a placement would have been raised and discussed with the prospective adopters before a notice under the 2002 Act is issued.
iv) The removal of SB is in contravention of section 15 Equality Act 2010 (i.e. discrimination arising out of disability: "A treats B unfavourably because of something arising in consequence of B's disability");
v) RCW has made proper arrangements for SB's care while in hospital and while she is recuperating and adjusting to her new situation. The recuperation and adjustment is still at an early stage; there is no evidence that SB's care is actually being compromised; SB has been meeting her developmental milestones; RCW believes that she is closely bonded with SB (who she regards as her daughter);
vi) RCW has requested LBX and LBY for assessment and support; specifically she has been advised by the Royal National Institute for the Blind that there should be a care assessment for parenting. Her requests have not been taken up by either authority.