![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2012] EWCA Civ 737 (31 May 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/737.html Cite as: [2012] 2 FLR 1358, [2012] EWCA Civ 737 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
![]() ![]() ![]() ![]() ![]() ![]() ![]() | ||
![]() |
CIVIL
DIVISION)
ON APPEAL FROM BRIGHTON
COUNTY COURT
HER HONOUR JUDGE RAESIDE
UR11C00108
Strand, London, WC2A 2LL |
||
![]() |
B
e f o r e :
and
LADY JUSTICE BLACK
____________________
|
||
![]() ![]() ![]() |
____________________
by
Fitzhugh Gates Solicitors) for the Appellant
Deborah Shield (instructed by
East Sussex County Council for the First Respondent, Holden and Co for the Second Respondent mother, WMC Legal LLP for the Third Respondent father and Harney and Wells for the Fourth Respondent
child))
Hearing dates : 17th May 2012
____________________
Crown Copyright ©
Black LJ:
"denies that she drank alcohol during herchildren's
![]()
childhood
and [says] that she only
began
to abuse alcohol after her mother's death and when [her partner] KR left her. She states that she drank excessively with her partner GT. This relationship was violent and volatile. Police were called to this address on several occasions. PGM states that she has not drunk alcohol since she asked her partner GT to leave in April 2011."
"Should the Local Authority deem it appropriate to initiate Care proceedings then PGM couldbe
made party to the proceedings and undergo the relevant assessments which could inform the Courts Final Care Plan for J."
and at paragraph 5(f) (B31):
"The Local Authority cannot comment on whether J is likely to suffer significant harm under PGM's care without further assessment of her alcohol use, however,by
the reports obtained from her
children
and M the Local Authority would not currently recommend that J
be
placed under PGM's care without further assessments.
By
the virtue [sic] that
both
her
children
have reported
childhood
abuse and their insistence that J is likely to suffer significant harm under PGM's care, the Local Authority would not at this time deem it in J's
best
interests to
be
cared for
by
PGM or indeed have unsupervised contact with her."
Paragraph 6 reverts to the question as follows (B31):
"6.3 It appears from information gathered that PGM has notbeen
able to sustain positive relationships with her extended family and her own two
children
[who] reported that they experienced abuse under PGM's care and showed deep concern in her application for residency of J. PGM denies that she drank excessively whilst her own
children
were growing up and shows little understanding as to why her own
children
do not speak to her any more."
6.4 PGM is currently singlebut
has a history of forming relationships with males who are violent or drink alcohol excessively. She reported that she has
been
unlucky with her choice of partners in her life, however, showed little reflection on the relationship patterns she has formed. …
6.6 AlthoughChildren
Services have little evidence to support F, CB, and M's claims against PGM, their reports do raise serious concerns in respect to PGM's application to the Court to provide care for J.
"7.1 In regard to PGM's application for Residency of J it is the Local Authority's view that further assessments such as psychological, psychiatric and alcohol testing would need tobe
undertaken on PGM to establish whether she is able to provide J with appropriate care and a safe home environment.
7.2 In regard to PGM's application to the Courts for a Contact Order, it is the Local Authority's view that contactbetween
PGM and J would need to
be
supervised and
be
in J's
best
interests. The Local Authority does not want to confuse J any further
by
introducing contact with PGM at this stage."
"Further work and assessment will need tobe
undertaken with PGM to ensure that she is able to care for J appropriately and meet his needs.
Conclusion
I recommend that prior to any assessmentby
the family plus services, PGM should have a psychological assessment in order to ascertain her view on what has happened in the past and the impact that this has had on her relationships with her son, daughter, and with M. It should also assess her ability to
be
honest with professionals and make any necessary changes to her lifestyle and attitude required to care J appropriately [sic]. In addition, I recommend that PGM undertakes an assessment relating to her alcohol use past and present to include alcohol testing.
It is my assessment that until the aforementioned work is undertaken with PGM it is not possible to draw conclusions regarding her ability to care for J in the long term."
The arguments advanced in support of the appeal
The law
"Where the person applying for leave to make an application for a section 8 order is not thechild
concerned, the court shall, in deciding whether or not to grant leave, have particular regard to
(a) the nature of the proposed application for the section 8 order;
(b) the applicant's connection with thechild;
(c) any risk there mightbe
of that proposed application disrupting the
child's
life to such an extent that he would
be
harmed
by
it; and
(d) where thechild
is
being
looked after
by
a local authority –
(i) the authority's plans for thechild's
future; and
(ii) the wishes and feelings of thechild's
parents."
"must satisfy the court that there is a serious issue to try and must present a good arguable case. 'A good arguable case' has acquired a distinct meaning: see the long line of authorities setting out this as the convenient approach for the grant of leave to commence proceedings and serve out of the jurisdiction under RSC Ord 11. One should avoid unprofitable inquiry into what precisely these turns of phrase mean. Their sense is well enough known – is there a real issue which the applicant may reasonably ask the court to try and has he a case which is shown to have abetter-than-even
chance, a fair chance, of success? One should avoid over-analysis of these 'tests' and one should approach the matter in the loosest way possible, looking at the matter in the round
because
only
by
such imprecision can one reinforce the importance of leaving the exercise of the discretion unfettered."
"Judges shouldbe
careful not to dismiss such opportunities without full inquiry. That seems to me the minimum essential protection of Arts 6 and 8 rights that Mrs J enjoys, given the very sad circumstances of the family."
"The statutory language is transparent. Nowhere does it import any obligation on the judge to carry out independently a review of future prospects."
"[18] I am particularly anxious at the development of a practice that seems to substitute the test, 'has the applicant satisfied the court that he or she has a good arguable case' for the test that Parliament applied in s 10(9). That anxiety is heightened in modern times where applicants under s 10(9) manifestly enjoy Art 6 rights to a fair trial and, in the nature of things, are also likely to enjoy Art 8 rights."
Discussion concerning the judge's decision
Laws LJ: