Tuesday, 9 October 2007

Re W (A Child) [2007] EWCA Civ 102

Re W (A Child) [2007] EWCA Civ 102 is an example a) of where the Protocol can cause the wrong result and b) the extent that it cannot come before the law.

A child was taken from the mother at 11 months old in May 2005 and at a final hearing in February 2006 a care order was made with the mother’s consent and not opposing a freeing application. On the 9th of March 2006 the mother and child saw each other for the last time.

(I pause to wonder what quality of advice she was being given at this point, particularly as she was of restricted intelligence. The court repeated one of my favourite admonitions in the course of this judgment from Re L (Children)(Threshold Criteria) (2006) that the courts of this country do not take children of parents for being unintelligent, but because s31 is met)

Despite the mother’s position, the matter went to the Court of Appeal and the orders were set aside for reasons which need not concern us here, and on the 18th of October HHJ Onions made another care order and freeing order despite a number of comments by him that indicated that properly considered, the threshold criteria were not satisfied.

He seemed to be driven on by the need to come to a determination, and reached one.

Further procedural steps followed and mercifully the child was not adopted despite the mother accepting the recommendations of her assessment and the Guardian and not opposing the making of a freeing-order.

And so, in February 2007, the child then being two and a half years old, the case was back at the Court of Appeal again, the care order set aside because there was no jurisdiction to make it in the first place (the local authority having failed to make out its case) and an interim order made.

As the case was remitted we cannot know what happened next but the point is that even well after the point that one might have thought that all argument must cease as the child’s need for placement would predominate, the court properly stopped the case in its track because the basic issue of the threshold criteria had not been properly determined.