Legal Update – care proceedings

Ed Mitchell looks at recent appeal court rulings relating to care proceedings

The case of C (a child) was the first of two recent Court of Appeal decisions to overturn care orders because a court had not acknowledged that, wherever possible, children should be brought up by their natural parents.

A local authority brought care proceedings in respect of an eight-month-old boy. The plan was to pursue an adoption placement. The guardian considered this premature and recommended continuing an interim care order until the boy was one. During this four-month period, argued the guardian, the parents’ suitability as long-term carers could be properly assessed. The court, however, granted the local authority a care order.

In December, the Court of Appeal set aside the care order and replaced it with an interim care order. The court said the parents deserved a short “period of probation” when they would have the chance to prove themselves suitable carers.

The importance of fact finding

Care courts are frequently faced with the complex task of identifying the facts from a mass of often contradictory evidence. However, facts must be found, for that is what judges are paid to do. This point was made last November by the Court of Appeal in B (a child).

A three-month-old girl was admitted to hospital with severe injuries, including a fractured skull and vertebrae. An application for a care order was made. The father accepted some responsibility saying that he was too vigorous when winding the girl and had accidentally dropped her on her head. The local authority disputed this, arguing instead that the injuries were not accidental and had been caused by deliberate violence.

In the first instance the court said that, even on the father’s account, a care order was justified and so would be made. Despite having been granted an order, the local authority appealed. It was concerned that, under the court’s ruling, the local authority would be obliged to treat the father in matters such as facilitating contact with his daughter as if he were guilty only of being very careless.

The Court of Appeal allowed the appeal and ordered a re-hearing. Clear findings of fact should have been made as to what had happened to the child.

Not perfect but good enough

A child cannot be removed from his or her parents simply because someone else might be a better parent. This was reiterated last September by the Court of Appeal in H (a child).

A 10-year-old girl’s mother had a violent temper which led to conflict with significant adults in her daughter’s life. The mother prevented the daughter’s contact with her father (in breach of court orders) and grandmother. A local authority applied for a care order. A court held that the “significant harm” threshold was satisfied on the basis of emotional harm and went on to make a care order under a care plan for long-term foster care.

The Court of Appeal overturned the care order and made a supervision order. The child had a strong attachment to her mother and had consistently stated that she wanted to live with her. Any emotional benefit for the child that might come from contact with family members under a care order was outweighed by the long-term emotional harm likely to be caused by separation from her mother.

Ed Mitchell is a solicitor and editor of Social Care Law Today

This article is published in the 12 March 2009 edition of Community Care under the headline “Courts insist parents are given a chance to prove themselves”

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