The Irish Times – Monday, May 10, 2010
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England and Wales Court of Appeal, EH -v- London Borough of Greenwich, Neutral Citation Number:  EWCA Civ 344. Unanimous judgments were given on April 9th, 2010, by Lady Justice Smith, Lord Justice Wall (President of the Family Division), and Mrs Justice Baron
A decision by a Circuit Court judge to grant to the London Borough of Greenwich a full care order in respect of two children, along with a placement order that they be adopted, was wrong in law in that the judge failed to refer explicitly to the provisions of the Children Act 1989, Article 8 of the European Convention on Human Rights and the Adoption and Children Act 2002.
The children in question, a boy and a girl, are now aged five years and two months, and two years and eight months respectively. Until January 3rd, 2008, when the incident occurred that led to the involvement of the social services, they were thriving in their family.
On the afternoon of January 3rd, 2008, the younger child, then aged five months, was taken by her parents to the accident and emergency department of the local hospital, where she was found to have an arm broken in three places.
Her parents could offer no explanation as to how the injury occurred, and the medical team concluded it was non-accidental, and informed social services, who removed the children from their parents.
Initially they were placed with their maternal grandmother, but this was discontinued following a dispute between her and the children’s father, when the social services concluded she would be unable to protect them.
In November 2008, a fact-finding hearing took place where the judge concluded that the injury was non-accidental, and had probably arisen when the father lost his temper with the baby and was violent towards her. The father had a history of violence.
The judge did not conclude that the mother saw what had happened, but found she had sought to protect the father in not telling the hospital what had happened.
He described her as “a warm and loving mother” and said: “These parents have many good qualities: they love their children and the children love them . . . It would be very unfortunate if the children had to be removed from their parents.”
The mother sought a meeting alone with the local authority, apparently in order to discuss freely her partner’s conduct. However, the meeting it arranged was with both parents. The judge said: “Despite the evidence of good parenting, the local authority formed the view far too early that their care plan should be to place the children away from their parents.”
Mrs Justice Baron commented: “The consequence of the local authority’s fixed preference meant that they did not actively support the mother in urging her to separate from the father.”
On January 31st, 2009, the mother left the father and moved into a refuge. The father had some form of nervous breakdown and was admitted to a local hospital, where he stayed for a month.
A psychiatrist, an independent social worker and a guardian ad litem prepared reports on the mother, which were largely positive, and they supported the return of the children to their mother, provided she understood the danger posed by the father and the need to separate from him. However, they considered that if she was in a continuing relationship with him the children would be in danger.
The local authority asserted there were several pieces of evidence that proved an ongoing relationship between the parents, and that this meant the children could not be reunited with their mother.
One piece of evidence was that the couple had been seen together in a shopping street in Woolwich on a Saturday in July, when the mother claimed she was in the refuge.
The judge accepted this evidence, and concluded that the mother had lied to him. As a result he granted the local authority the care order, a placement order that the children be placed for adoption, and an order dispensing with the parents’ consent to adoption.
The mother appealed against this decision to the Court of Appeal.
Mrs Justice Baron said the judge was entitled, on the evidence, to come to the conclusion that the mother had lied, but he should have gone on to consider why, and whether the whole of the evidence was capable of proving a continuing relationship about which she had lied consistently.
A plausible explanation for it was that she did not have a good relationship with the local authority, which had failed to support her in separating from the father.
“Without support, I am not persuaded that this mother was ever given a fair opportunity to demonstrate that her commitment to the children was greater than her relationship with the father,” she said.
The placement order was a very draconian order, and the judge did not mention Article 8 of the European Convention on Human Rights (ECHR), guaranteeing respect for family life.
“In cases where the care plan leads to adoption, the full expression of Article 8 must be explicit in judgment because, ultimately, there can be no greater interference with family life.
“Accordingly, any judge must show how his decision is both necessary and proportionate,” she said.
She concluded that the orders made were plainly wrong, and set them aside.
Lord Justice Wall, president of the Family Division of the Court of Appeal, agreed and added: “There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows . . . (that) the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.”
He said he wished to add comments concerning the conduct of the local authority, which he said was “entirely inimical to the ethos of the Children Act 1989; wholly contrary to good practice in care proceedings and unduly adversarial”.
He quoted from the circuit court judge’s initial judgment, where it was clear that the local authority had decided at the outset to take the children away from their parents. “I find it quite shocking,” Lord Justice Wall said. “Here was a mother who needed help and was asking for help to break fee from an abusive relationship. She was denied that help abruptly and without explanation.
“ are perceived by many as arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process. This case will do little to dispel that perception . . . Their aim should be to unite families rather than separate them.”
He also urged the mother not to lie again to the judge.
The full judgment is on www. bailii.org.