Public Law Update: August 2021
Index of Cases
- Re B (Children) EWCA Civ 1221 – The Court of Appeal considered an appeal by a mother against the Court’s decision that her application to dispense with service upon the father should be dismissed and that he should be notified of proceedings –
- Re R (Care Proceedings Joinder of Foster Carers)  EWHC Civ 875 – The Court of Appeal considered a decision to join a child’s foster carers, who wished to adopt the child, to the care proceedings –
- Re F-S (A Child: Placement Order)  EWCA Civ 1212 – The Court of Appeal considered a mother’s appeal against the making of a Placement Order – https://www.bailii.org/ew/cases/EWCA/Civ/2021/1212.html
- Re B (Children)  EWCA Civ 1221
Judgment of Lady Justice Macur.
The Court of Appeal considered the decision of HHJ Wood, sitting as a Judge of the High Court on 24 June 2021. HHJ Wood dismissed the mother’s application to dispense with the requirement upon the local authority to give notice of proceedings upon the biological father (S) of B, under PD 12C and FPR 2010 r 12.8.
Background: The Appellant was the mother of B (3 years) and C (5 years). M asserted that B was conceived during one of several incidents of rape and that S’s reaction to the pregnancy was so extreme that she feared for her and B’s physical safety if he were to be alerted to proceedings. The mother claimed that S had sent threatening messages to her at the time of the pregnancy and warned her to stay out of his life otherwise he would make it his “life’s job to f**k your life up”. He blocked the mother’s number and had played no part in B’s life. The mother claimed she was fearful of physical and sexual violence.
The Judge accepted that the mother’s evidence should be taken at face value for the purposes of determining the application. Judge also accepted that the circumstances of the non-consensual sexual relations were “plainly very, very nasty”. Judge proceeded on the basis that S had no PR and no relationship with his child. Mother submitted that S had no Article 6 or Article 8 rights and that the balance of risk fell in favour of service being dispensed with.
The Judge referred to the factors identified by the Court in Re A and in particular the need for “(at ” “rigour in analysing the risk and the gravity of the harm that is feared before taking, and I am using his words, this exceptional ‘last resort’ step” denying S an opportunity to participate in the proceedings. This fell to be considered alongside the identified need “for there to be strong countervailing factors that would prevail over notice to a birth father in such circumstances.” (See Re H, re G (Adoption: Consultation of Unmarried Fathers)  1 FLR 646.)
The Judge concluded that he was not satisfied that this was an exceptional case. He considered that the risks could be managed with appropriate measures. The mother’s application to dispense with service was refused.
There were two grounds of appeal:
- Judge failed to take into consideration the fact S had not acquired article 8 rights regarding family life with B.
- The Judge erred in the balancing exercise he performed since a) he applied a higher test of exceptionality, which was unwarranted in the case of a parent without PR and b) he failed to take into account the interference with the article 8 rights of the mother and the child and c) he wrongly assessed the level of risk.
The first ground was dismissed as without merit. The Judge had not proceeded under any misapprehension that S had any Article 8 rights.
With regard to the proper exercise of balancing competing rights, the Court of Appeal referred to Re A (Adoption Notification of Fathers and Relatives)  EWCA Civ 41 where Peter Jackson LJ considered “that there is a broad consistency in the court’s general approach to the issue of notification of fathers and relatives. In my judgement, the balance that has been struck between the competing interests in these difficult cases is a sound one and there is no need for any significant change of approach”. The Court of Appeal agreed that the decision as to whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in each individual case.
However, the Court of Appeal did need to address the use of the word ‘exceptional’ in the first judgment. It was argued on behalf of the mother that there was a distinction between a test of ‘higher exceptionality’ and ‘exceptionality’, the former applying to those with Article 8 rights. The Court of Appeal considered this an attempt to revive the difficulties caused by attempting to distinguish between ‘wrong’ and ‘plainly wrong’ which had to be put to rest by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33. The ‘test’ should not be a semantic one, as this will detract from the essential task of balancing the fact specific features in every case. This exercise will inevitably reveal that some features of a particular case are heavily weighted against dispensing with service but different combinations of factors will apply in every case and different weighting will be merited by those individual circumstances.
The Court of Appeal determined that the Judge had in mind the relevant legal principles that he must and demonstrably did apply. However, concern was raised about the lack of thought given to the actual process of serving S, given the potential sensitivities. Therefore, the Local Authority was ordered not to serve the C6A notification upon S without the approval of the allocated Judge about the way it should be done.
The appeal was dismissed.
- Re R (Care Proceedings Joinder of Foster Carers)  EWHC Civ 875
Judgment of Lord Justice Baker.
The Court of Appeal considered a decision to allow the child’s foster carers, who had cared for the child since he was a few days old and now wished to adopt him, to be joined as party to the care proceedings.
Background: The decision involved a boy (R), aged 14 months. Rn was placed with his foster carers when he was a few days old, and had formed a very clear and strong bond with his carers.
R’s mother had a history of drug abuse and criminal offending, with periods of homelessness. At the date of the appeal she was in prison once again. Her three older children were living with members of her extended family. R was born on 3 March 2020. The following day, a removal hearing took place and R was placed with Mr and Mrs A, where he remained. All assessment of family members were negative. Mother was given permission for a residential assessment but failed to engage.
The LA applied for Care and Placement Orders. Mr and Mrs A indicated their interest in adopting R. Meanwhile, as per their duty to do so, the LA continued with their enquiries re potential family members. A cousin of the mother (G) was identified as a potential adopter, with an initial assessment concluding positively.
The matter was transferred from Magistrates to a Circuit Judge and came before HHJ Marshall on 12th December 2020. The LA argued that R should be placed with G as a “connected person” foster carer. The CG, however, expressed that there was insufficient evidence to conclude that this was in R’s best interests. The Court directed that R should not be moved from his current placement, but that introductions with G could commence.
On 24 February 2021, the fostering permanence panel recommended Mrs G for approval and the LA embarked on a further assessment under the Adoption Agency Regulations to establish whether they were suitable to adopt R. The matter was listed on 15 March 2021.
Shortly before the hearing on 15 March 2021, Mr and Mrs A, who were unrepresented, filed a notice of application for an adoption order (which they could not do lawfully as they had not given notice to the LA as required under s44). At this stage, the LA supported placement with Mrs G. The Judge took the view Mr and Mrs A should be joined as parties to proceedings, as there was nobody else who could effectively put their case, in contrast to G. The LA appealed this decision. At the time of the appeal, both Mrs G and Mrs A had been approved as adopters.
Judgment: Baker LJ did not agree with the local authority that the proposed application by the foster carers was irrelevant nor that it was an impermissible attempt to circumvent the statutory scheme. The statutory scheme says nothing that would prevent a person who is lawfully entitled to apply for a private or non-agency adoption from doing so before or after the local authority has applied for a placement order.
Baker LJ noted that where such a person has given notice of intention to apply to adopt, the local authority is absolved from its statutory obligation to apply for a placement order, provided the adoption application is issued within four months and has not been withdrawn or refuse (s.22(5) Children Act 1989). Further, when a lawful application has been made, the court must consider it and is not constrained from doing so by the statutory scheme. Any court was also required to take into account the range of powers available when making a placement order, and that would include the making of a non-agency adoption order as sought by the foster carers.
The Court concluded that the care order application should proceed to a final hearing at which the judge would have to determine the local authority plan for adoption, and that if this was so, it was anticipated that a final care order would be made but the application for a placement order adjourned to be determined in parallel with Mr and Mrs A’s application to adopt (by which time it would have been validly made). The Court also set aside the order for the filing and serving of adoption assessments, on the basis that they would contain confidential information, and stating that this should be reconsidered at the next hearing.
- Re F-S (A Child: Placement Order)  EWCA Civ 1212
Judgment of Lord Justice Baker.
The case concerned four children, A, B, C and D. The children were removed from the care of the mother and Mr S at the start of proceedings in November 2019 as a result of domestic violence and poor home conditions. Findings were made that Mr S had caused facial bruising to A. Placement Orders were made in respect of A and B. C and D were placed with their PGP under a care order. The appeal was brought in relation to B.
The LA’s initial plan was for the rehabilitation of B and A to the mother’s care. These plans were changed in 2020 as it was discovered that the mother had secretly resumed her relationship with Mr S. The court found they had purposefully deceived the court and the LA. Mother conceded she could not resume care of B and A ‘at this time’ and proposed that they be cared for by the maternal grandmother (who had been negatively assessed) or remain in foster care so that she might resume care in future.
The eldest child, B, who was almost 6 at the time of the appeal, had been placed on his own in foster care. He had global developmental delay and it was unclear whether he would be able to live independently as an adult. He had thrived in foster care.
At the conclusion of the final hearing on 8 March 2021, Her Honour Judge Campbell made a placement order for B with a view to an open adoption by his foster carers, including regular contact with his siblings and his mother. A was made subject to a placement order. C and D were placed with their paternal grandparents under a care order.
In April 2021, the mother applied to revoke the placement order in respect of A (she was a litigant in person). This was dismissed and permission to appeal refused.
The mother’s appeal related to B only. The grounds of appeal asserted the judge was wrong in law for three reasons:
(1) As the LA care plan contemplated only placement with the current foster carers who were prepared to continue to care for B without a placement order, it was unreasonable to conclude that a placement order was necessary;
(2) The judge applied the wrong test indicating what course would best meet B’s needs rather than setting out why no other course was possible; and
(3) The reasons were insufficient to demonstrate that a placement order was required.
At the appeal, it was accepted that a care order had been inevitable and that the realistic choice was between adoption and adjourning under an ICO to allow for an application for an SGO. M submitted that the judge was wrong to prefer adoption where the less interventionist SGO would offer equivalent benefits.
Lord Justice Peter Jackson set out the key parts of HHJ Campbell’s judgment. This included a balance sheet of the advantages and disadvantages of the realistic options (long term fostering with a view to an SGO vs adoption) and reasoned conclusions. He observed that it was a ‘notably careful decision’. Such decisions are extremely hard to unsettle on appeal [Re A  EWCA Civ 1254, para 37-9].
The Court of Appeal did not accept that the judge made any error of law. The judge’s description of a placement order for B as that which ‘best meets his welfare needs’ must be viewed alongside her other statements including that B’s needs ‘can only be met’ by adoption. The Judge undoubtedly applied the correct test. A specialist judge can be assumed to know how to approach a familiar task unless the contrary is demonstrated, and an isolated turn of phrase, even at a key stage in the reasoning, must be seen in the context of the judgment as a whole.
The judge’s reasons were not inadequate. If further explanation had been required, it could have been requested.
Peter Jackson LJ rejected the arguments put by the mother. In particular:
(1) The judge was entitled to take into account the foster carer’s preference for adoption. The argument that their willingness to continue to care for B without a placement order demonstrates that a placement order is not necessary is a non sequitur. The court’s statutory assessment cannot be dictated, though it may be influenced, by the attitudes of individuals.
(2) The judge was entitled to consider it essential that B receives the very best possible parenting now and throughout his childhood. Given his likely complex needs, his permanent carers should have the freedom to make decisions for him without being answerable to the LA or to the mother.
(3) The greater stability offered by adoption is relevant. A child’s welfare is measured not only by the care he will receive but also by ‘”the enduring sense of belonging within a family” [ EWHC 3974 (fam)]. The judge was entitled to regard it as a factor of critical importance.
(4) An SGO is not irreversible. It might be unsettled by disruptive future challenges by mother.
(5) The plan for an open adoption was significant. B’s relationship with his mother and siblings is important and there is an opportunity for it to be preserved. The judge was entitled to regard that as counting for more than the mother’s loss of a parental responsibility that had sadly not served B well in the past.
(6) It is not enough to say that the Judge could have made a less interventionist order if the reality is that a lesser order would not adequately meet B’s childhood and lifelong needs. The Judge explained why a lesser order is not good enough for B. She was fully entitled to make a placement order.
Lord Justice Baker dismissed the appeal.