Public Case Law Update by Georgia Bradley, Pupil Barrister
Re W (A Minor) (Death of Mother Before Birth of Child: Threshold Criteria) [2024] EWFC 350
Background
This case concerns the tragic circumstances of, at the time of judgment, a three week old baby whose mother had passed away before his birth.
W’s father is currently detained in prison and does not have parental responsibility.
While in utero on 18th September 2024, W was made subject to a Child Protection Plan. Approximately five weeks later, on 22nd October while 7 months pregnant with W, his mother passed away after jumping from the seventh floor of her father’s apartment block.
Although the mother had sadly passed away at the scene, she was taken to hospital, and W was born prematurely by caesarean section. W was in critical condition at birth, but he very fortunately became well enough to be discharged from the hospital on 11th November 2024.
The Legal Issues
On 28th October 2024, the Local Authority applied for care orders in respect of W and there was a hearing on the following day. No interim care orders were made at the initial hearing, given concerns surrounding the very unusual situation of a baby being born after the death of his mother. The reason for this was explained in paragraphs 8 and 9 of Mr Justice Peel’s judgment:
- ‘The reason why an ICO was not made on the last occasion was because of the unusual set of circumstances where W was born after W’s mother had died. An issue for me to consider is whether it is open to the court to find that the relevant threshold (final under s31 or interim under s38) can be met and/or whether the court has jurisdiction to make orders in respect of W under Part IV of the Children Act 1989’
- In Re D (Unborn Baby) [2009] 2 FLR 313 it was held by Munby J (as he then was) at para 12 that the court could not exercise jurisdiction either under the Children Act 1989 or under wardship to order. in advance of the mother giving birth, that the child, upon birth, should immediately be removed into care: “The fact that the child is as yet unborn means that I cannot exercise jurisdiction under the Children Act 1989; it means that I cannot exercise jurisdiction under wardship”.
Mr Justice Peel highlighted that Section 31(2) of the Children Act 1989 provided that two conditions must be satisfied for the statutory threshold to grant a care order to be met:
Firstly, (Section 31(2)(a)) the court must be satisfied that “the child concerned is suffering, or is likely to suffer, significant harm”.
Secondly, (Section 31(2)(b)) “the harm, or likelihood of harm, is attributable to-
- the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him”.
Judgment
Mr Justice Peel ultimately concluded that the threshold had been met in W’s case and found that the mother’s actions had directly caused harm to W. He had also borne in mind MacDonald J’s review of wardship in A City Council v LS [2019] 2 FLR 1197, in that there is a strict prohibition against the use of wardship proceedings to make what amounts to a care order.
Further, as any remaining caregiver, W’s father, was detained in custody and therefore incapable of caring for W, this supported that the threshold was met.
Consequently, the Court exercised its powers under Section 38 of the Children Act 1989 to make an interim care order. Wardship, therefore, was not the appropriate way forward.
The full judgment dated 28th November 2024 can be found at:
https://www.bailii.org/ew/cases/EWFC/HCJ/2024/350.html
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A v Adopt London North & Ors [2024] EWFC 373
Background
In this case, Mrs Justice Theis DBE scrutinised the Local Authority’s failure to fulfil their statutory obligations with respect to adoption support and properly assessing a prospective family for such.
In February 2023, the maternal aunt of three children made adoption applications for three children. The children’s mother had sadly passed away in 2012 and their father was not involved in their lives and as such, it was not deemed necessary that he be served with notice for proceedings.
Following the loss of their mother, the children had been living with their aunt and maternal grandmother in another country. However, in 2017 the aunt was politically persecuted and was granted asylum in the United Kingdom in 2018.
The children and their grandmother were made homeless at the time and the children had suffered significant trauma and abuse. The aunt was able to locate her family in 2019 with the assistance of the Red Cross, and they reunited in the United Kingdom in 2021.
The family were assessed by the Local Authority’s Early Help Team. Although the family had faced some challenges with respect to their living arrangements, it was noted that there was warmth and stability within the family dynamic.
The Legal Issues
Matters relating to the children were first brought to the attention of the court in August 2022, where the aunt was granted parental responsibility for one of the children following an application made by a Hospital Trust with respect to medically treating one of the children but being concerned that nobody held parental responsibility over them.
The aunt had later applied for a child arrangements order for all of the children, and sought leave to apply for an adoption order, given that the requirements of Section 42(5) of the Adoption and Children Act 2002 (that the children must have lived with her for three years) had not been met. The aunt was granted leave to apply under Section 42(6) of the Act and made her application in February 2023.
Although the Local Authority in their Annex A report from August 2023 strongly supported an adoption order (which the Children’s Guardian had also strongly supported in their report a month later), the Local Authority had erroneously concluded that the placement was ineligible for support.
It was hoped that a final hearing would be held in October 2023, however, it could not be concluded due to the failure of the Local Authority to undertake an assessment of the family’s adoption support.
Judgment
Reassessment was delayed on a number of occasions, prompting judicial review proceedings, and it took until December 2024 for matters to be concluded. In her concluding remarks, Mrs Justice Theis DBE stated:
“Although the issues regarding an Adoption Support Plan have finally been resolved it is of very great concern that it has taken twelve months, and that part of that delay was caused by a fundamental misunderstanding by the local authority of the relevant legal framework that governed the assessments for such support. It was only through the tenacity and expertise of A’s legal team and two letters before action that the situation now has been reached where agreement was possible. That additional significant delay and lack of certainty has been contrary to the welfare needs of these three vulnerable children.”
The hearing concluded positively for the aunt and the three children, and Mrs Justice Theis DBE was satisfied that the lifelong welfare needs of the children could only be met by the Court making the adoption orders.
Ultimately, this case emphasises the importance of Local Authorities fulfilling their statutory obligations to prevent unnecessary delays in adoption proceedings.
The full judgment dated 20th December 2024 can be found at:
