Public Family Case Law Update by Maya Hanson & Blaise Morris
N (Children: Revocation of Placement Orders) [2023] EWCA Civ 1352
The Court of Appeal gave valuable guidance as to the revocation of placement orders.
The Judgement was handed down by Peter Jackson LJ, in the Court of Appeal (Civil Division), on appeal from the Family Court at Milton Keynes.
Background
This case was an appeal by a mother of two children, a girl aged 7 and a boy aged 5, from the dismissal of her application to discharge placement orders and her application for the instruction of an independent social worker. The appeal was supported by the children’s father but opposed by the local authority and the Children’s Guardian.
The proceedings began in October 2019 due to domestic abuse by the father from which the mother was not protecting the children. There was a substantial fact-finding hearing before a deputy judge, which resulted in the removal of the children from the mother’s care. The deputy judge found that the father had regularly assaulted the mother but that she had lied about it or withdrew complaints. The deputy judge also found that the mother had failed to separate from the father or protect the children from being exposed to such incidents. Neither parent had engaged with the child protection plans or the support and work offered.
Placement orders were made in December 2021 and farewell contact with the mother took place in March 2022, and the prospective adopters were identified in October 2022 and introductions began. However, in March 2023, the mother applied for leave to apply to revoke the placement orders, which were granted on 11 May.
In September 2023, Recorder (now HHJ) Newport found that it would not be in the children’s best interests to revoke the placement orders. Recorder Newport concluded that despite the mother’s considerable efforts, she could not meet the needs of the children who needed skilled parenting.
Grounds of appeal
Baker LJ granted permission to appeal on the 16th of October 2023. Peter Jackson LJ set out the mother’s grounds of appeal as follows:
- The Judge was wrong in law to determine that there is a difference between the quality of the local authority evidence required to support an application for care and placement orders and the quality of the evidence required to resist an application to revoke a placement order once leave has been granted. The Judge should have applied the same ‘proper evidence’ test.
- The Judge was wrong to conclude that the deficits in the local authority evidence could be corrected by the social worker’s oral evidence and that there were no gaps in the assessment evidence.
- The Judge was wrong to accept the Guardian’s conclusions when her analysis was flawed and/or based on the flawed assessment of the local authority.
- The Judge was wrong not to adjourn the proceedings for a fair and proper assessment to be obtained. Such evidence was necessary for the just and fair determination of the proceedings.
The Court of Appeal dismissed the appeal. The court recognised that the mother had tried to make changes in her life since the children were removed from her care. However, the court concluded that these changes had not brought the mother to a point where she could meet the children’s needs. The court determined that the children had faced uncertainty for two and a half years and required a permanent home.
The court provided guidance as to revocation of placement orders.
Section 24(1) Adoption and Children Act 2002 provides that the court may revoke a placement order on the application of any person.
To revoke a placement order, a person must show that there has been a change of circumstances since the making of the placement order and that it would be in the child’s best interests.
The relevant principles to apply are as set out in Re C (Children) (placement order: revocation) [2020] EWCA Civ 1598 at paragraphs 17-21.
As with any application, the legal burden of proof rests with the applicant, to show to the civil standard that it is not in the interests of the child to maintain the placement order. Once permission to apply is granted, the court’s task is to carry out an impartial review of whether a placement order continues to be in the interests of the child.
On evidential matters, the party seeking a factual finding will bear the burden of proving it, again to the civil standard. So, it will usually be for an applicant parent to show how much their position has changed since the placement order was made, and for opposing respondents to stipulate what a change of plan would mean for the children. The evidential picture will not usually be the same. Generally, the evidence before the court at a revocation hearing will differ from the evidence that was given in the care and placement proceedings as the court has already made its finding about events preceding the placement order. Therefore, the succeeding evidence will be more closely focused on events since then and, significantly, on the future.
The full judgment can be found at: https://www.bailii.org/ew/cases/EWCA/Civ/2023/1352.html
J, K & L (Children: Interim removal) [2023] EWCA Civ 1266
Interim Separation: An important reminder from the Court of Appeal of the need for local authorities to satisfy the 5-stage test when seeking interim removal.
Facts
This case concerns three children, including one set of twins born in 2015. In 2016, the mother gave birth to her youngest child. The mother has an additional 4 children, all of whom have been removed from her care.
Social services were involved with this family for a long time. In 2019, the parents separated but remained in close contact. The children lived with the mother but had regular contact with the father.
In January 2022, the mother was arrested for drink-driving, after which it was discovered that the children were left at home alone overnight. This resulted in her being charged with multiple offences, including child neglect. The children were placed with the father but returned to the mother’s care after a few weeks. Care proceedings were started in November 2022 as the mother failed to engage during the PLO. The children were placed with the mother under interim supervision orders. The father’s parenting assessment concluded that, with support, he could meet the long-term needs of the children. The mother’s parenting assessment was incomplete due to her limited engagement.
After a referral concerning the mother’s health, the children were placed back with their father on 2 May 2023. The mother made an unsuccessful application for the return of her children, instead a child arrangement order was made in favour of the father until further order. At a contact review meeting in May 2023, it was agreed that the mother could have unsupervised contact. It was reported that the children were thriving in the father’s care.
Both the father and children informed social workers that the mother had unsupervised overnight contact and the children were encouraged to lie about them to professionals. The Local Authority applied for interim care orders and placement in foster care as they held concerns about the children’s emotional wellbeing following contact with the mother. The first instance judge granted the applications sought by the LA on the basis that the children would continue to be at risk of immediate emotional harm. The applications were opposed by both the parents and the children’s guardian. Permission to appeal and stay the order pending an application to the Court of Appeal were both refused. The father’s notice of appeal was granted.
Legal Test(s)
Those well versed in Children Act proceedings will know that a local authority has a duty to intervene in family life where there are concerns about the safety and/or welfare of a child(ren). A local authority can apply to the court for an Interim Care Order (ICO) for shared parental responsibility if it considers there are reasonable grounds (interim test) for believing that the child is suffering, or is likely to suffer, significant harm (s31 (2) Children Act 1989). If an ICO is made, it does not automatically follow that a child will be removed. Removal is an entirely separate legal test to that of an ICO.
The 5-stage test to be applied by a court considering whether to authorise the removal of a child under an interim care order, derived from a series of reported cases, were summarised by Peter Jackson LJ in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 at paragraph 2:
- An interim care order is made at a point when the evidence is incomplete. It should therefore only be made to regulate matters that cannot wait for the final hearing. An ICO is not intended to place any party in the proceedings at a disadvantage.
- Removal of a child from a parent is an interference with their right to private family life. Removal at interim stage is a particularly sharp interference, even more so if the child is a baby because it will affect the formation and development of the parent-child bond.
- An order for separation under an ICO will only be justified where it is both necessary and proportionate.
- A plan for immediate separation will therefore only be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of separation are a proportionate response to the risks that would arise if it did not occur.
- The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.
The CoA noted that despite the principles of Re C being properly identified to the first instance judge, they were not mentioned in his judgment. The appeal judge found that the judge erred in reaching a decision considering “immediate risk of harm” only.
Had the judge applied the 5-step test summarised in Re-C, they would have reached a different conclusion (interim removal would not have been sanctioned), due to the local authority’s plan being unnecessary and disproportionate for the following reasons:
- The judge did not refer to positive evidence about the care being afforded to the children by the father, which was an important factor when deciding whether the children’s welfare required immediate removal and it did not feature in the welfare analysis.
- The judgement did not analyse the risk of the children suffering emotional harm if removed from their father’s care. The judge did not ask whether the risk of removal was outweighed by the risk of harm in his care.
- The judge was obligated to consider what resources may obviate the need for separation. As affirmed by the Supreme Court in Re H-W (Children) [2022] UKSC 17 (per Dame Siobhan Keegan at paragraph 45), it is a “longstanding proposition of English childcare law that the aim must be to make the least interventionist possible order”.
Had the judge taken into consideration the very positive evidence about the quality of care being provided by the father, the risk of emotional harm if they were removed, and the fact that the perceived risk of harm from unsupervised contact could be ameliorated by a court order defining contact supported by a written agreement signed by both parents, he would inevitably have realised that the local authority’s proposal was unnecessary and disproportionate. Instead, he should have adopted the less interventionist course, either, if the local authority agreed, under an interim care order or, if they did not, by continuing the interim supervision order. The ICOs were set aside, and thankfully all 3 children were returned to the care of their father.
Full judgement:
