New - Research in Practice Case Law Summaries

21 September 2016

Research in Practice case law summariesWe are delighted to launch a new resource to support professionals working in the family court or in pre-proceedings work with families. Case Law Summaries are a new, monthly update summarising and analysing selected public law cases and their implications for practice.

The summaries will provide the main details of the case and highlight key messages for professionals. You will also find links to Research in Practice resources that can support you to implement recommendations arising from the cases. 

The first summary analyses the recent judgment W (A Child) [2016]. This judgment has implications for all permanency cases involving adoption and for colleagues preparing reports and evidence on the different options for a child.

As this is a new resource, the Case Law Summaries for September are open access and we would appreciate any feedback or suggestions on how to develop this to best support your work. Please send any ideas to claudia.martins@rip.org.uk.


August 2016 summaries (open access)

Name of case (citation): W (A Child) [2016] EWCA Civ 793

Bailii (British and Irish Legal Information Institute)

Family Law Week summary

Date: 3.8.16

Case summary

The facts

A girl, A, was born to parents who could not care for her due to ‘low intellect and drug abuse’. Local Authority commenced care proceedings on the day A was born, 1 May 2014.  In October 2014, Care and Placement Orders were granted. In December 2014, when A was 7 months old, she was placed with prospective adopters, Mr and Mrs X, who applied to adopt A in April 2015. 

In June 2015, the birth mother gave birth to a second child (full sibling to A) causing the Local Authority to re-contact all birth family members which, on this occasion, identified the paternal grandparents.  Upon discovering the birth of A, the paternal grandparents offered to care for the new born baby and A.

The assessment of the paternal grandparents to care for A by an Independent Social Worker (ISW) was positive. The paternal grandparents applied for a Special Guardianship Order (SGO), supported by the ISW and the Children’s Guardian. The Local Authority supported Mr and Mrs X’s application for an Adoption Order for A. The birth parents played no part in the proceedings. Following a two day hearing in April/May 2016, the Court granted a SGO in favour of the paternal grandparents. By then A had been living with Mr and Mrs X for 17 months.

The prospective adopters appealed. The appeal was successful. For the time being, A is to remain with Mr and Mrs X and the case will be reheard.

The appeal raises issues with important implication for practice:

-        the application of judgment in Re B and ‘nothing else will do’

-        the importance of the welfare checklist

-        consideration of prospective adoptive parents as a related person(s) for the purpose of the Adoption Children Act 2002

 

Implication for Children Guardians

Paragraphs 16 to 29 of the judgment are critical of both the Guardian’s written report and her oral evidence. Lord Justice MacFarlane stated:

‘It is not my wish to cause the Guardian undue professional or personal embarrassment, but it is, unfortunately, necessary to spell out the defects in this document (her Court report) and in the Guardian’s oral evidence because of the reliance placed upon her opinion by the judge in his overall welfare evaluation.’

The Judge criticised the Guardian’s report and raises a number of issues:

1)      Inaccuracies and report QA

  • Front cover – specified wrong Court application
  • Date - report said to be ‘final’ but dated December 2015 even though the final hearing was not until April 2016
  • Name of parties - omitted the names of Mr and Mrs X

2)      Evidence base and analytical thinking

  • Under heading - issues/summary. This is an account of the history prior to December 2014. No issues are referred to
  • Under heading - evidence based analysis. The information within this section is not analysis, even less evidence based analysis (e.g. the guardian provides a history of the case and the views of the paternal grandparents)
  • Under heading – impact of the current proceedings on the child. The bulk of this section (11 paragraphs) provides a factual history prior to 2014.  The judge highlights that ‘... no part of that section relating to the impact of current proceedings seeks to address the issue of impact or give any description of A as an individual...’
  • Under heading - professional Judgment. The section contains a series of paragraphs that note the main dates and applications made but does not specify any  professional judgment being made by the Guardian
  • Report lacks analysis of the level of attachment of the child with the prospective adopters and consequences of breaking the attachment  
  • No reference is made to the Welfare Checklist
  • Guardian had not met A nor Mr and Mrs X before submitting this ‘final’ report.

3)      Recommendations

  • The Guardian appears to elevate a placement with natural family as the paramount consideration without an evaluation of A’s needs.

Lord Justice MacFarlane also criticised the Guardian for failing, in her oral evidence, to conduct an overall ‘welfare analysis aimed at balancing the pros and cons for the two competing options for A’. The oral evidence related to how the move will take place not whether the move was in A’s best interests.

Implications for Independent Social Workers

An ISW undertook and assessment of the paternal grandparents. The appeal Judge was of the view that the assessment undertaken by the ISW ‘contains a comprehensive and thorough professional social work assessment of the paternal grandparents and their ability to provide care for two children.’

However, the Judge was critical of some of the phrases used by the ISW her report. Examples of the terms used include:

‘Where there is a loving family – there can be no justification for a child to be adopted outside the family’

‘A has a birth family and has a basic right to be brought up by her family unless there is absolutely no other option’

‘I could not find any concerns significant enough to deny a child the right to be brought up by family’

‘A has the right to be brought up by her family of origin’

The Judge criticised the ISW for the use of such phrases and felt they represented a fundamental misunderstanding of the law.

‘Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option a ‘runner’ but should not automatically make it a ‘winner’.... The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest.’

Implications for practice: ‘Nothing else will do’

‘Nothing else will do’ was of course first used in Re B (Re B (A child) [2013] UKSC 33) and has been referred to regularly since then. This case emphasises the need to move away from the phrase ‘nothing else will do’ in isolation and relate it to the welfare of the child:

‘The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare’

The Judge is critical that there is no mention of the Welfare Checklist in the written and oral evidence of the Guardian and the ISW. Professional assessment and evidence must address the welfare of a child throughout his/her lifetime (S.1 ACA 2002)

This case’s main learning points:

  • avoid any phrases that suggest a natural family presumption/right to bring up a child
  • do not suggest that the existence of a viable family placement is the ‘winner’: rather that is  a viable option i.e. a ‘runner’
  • not to use the phrase ‘nothing else will do’ in isolation
  • the need to carefully go through the Welfare Checklist (S.1ACA 2002– in adoption cases) and specify the pros and cons under S.1 with a particular focus on S.1 (4) (a) to (f)
  • treating prospective adopters with whom the child has been placed and has a relationship with as a relevant person under the Adoption and Children Act 2002 S.1(4)(f).

Name of case (citation): Re C (A Child) [2016] EWCA Civ 798

Bailii

Date: 3.8.16

Case synopsis: successful appeal enabling the 2014 finding of fact judgment relating to death of Ellie Butler to be published in a redacted format.


Name of case (citation): West Sussex County Council v Alma [2016] EWHC 2008 (Fam)

Bailii

Date: 3.8.16

Case synopsis: 19 month old allegedly trafficked child. No information in relation to child’s identity. Widespread campaign launched including the national media. Placement Order granted on the basis that the parents could not be found and that the Local Authority and partner organisations ‘has taken every conceivable measure to achieve the identification of the parents’.


Name of case (citation): W (A Child) [2016] EWCA Civ 804

Bailii

Date: 19.8.16

Case synopsis: Unsuccessful appeal against a secure accommodation order granted in relation to a girl, W, aged 17 years and 8 months. Appeal brought on the basis that W had not consented to the order. Court rejected this argument: ‘consent is not a pre-requisite of the making of a secure accommodation order’. The Court was satisfied that the order has been made in the interest and considering the special circumstances of the child, having followed due process, and to keep them safe from significant harm.


Name of case (citation) : Re F (A Minor) [2016] EWHC 2149 (Fam)

Bailii

Date: 24.8.16

Case synopsis: during care proceedings, mother negatively assessed by a Consultant Clinical Psychologist, Dr Ben Harper. Mother had covertly recorded the assessment interviews with Dr Harper and successfully argued that his report significantly misrepresented her. Court agreed and found that no judge could fairly rely upon Dr Harper’s assessment of mother.


Name of case (citation): S Local Authority v T, UN and Others [2016] EWFC 41

Bailii

Date: 31.8.16

Case synopsis: care proceedings involving eight children with a complex fact finding hearing surrounding sexual abuse.


Related resources 

Evidence matters in Family Justice

This resource pack includes a range of briefings, tools and practical exercises to help managers and social workers prepare and present evidence in court. 

Analysis and critical thinking in assessment 2nd Edition: Handbook

This resource aims to support practitioners to be more analytical in their assessments.

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