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.

Re R (A Child) [2007] EWCA Civ 943

Regular readers/insomniacs will recall I discussed Re W (A Child) [2007] EWCA Civ 102 indicating the dangers of judge’s being overawed by the constant advice to progress cases.

Another less common but related error is found in Re R (A Child). The principal error into which the judge fell in this case was to look at the case from the adult’s point of view. Having effectively forgotten the welfare principle, he nonetheless remembered the need to press on and make an order.

A father against whom findings of fact had been made of domestic violence and inappropriate physical chastisement to the child sought what the judge described as ‘modest’ contact of two half-hour sessions during the Summer holidays. But though from the father’s perspective the contact was modest and the court would in normal circumstances be almost bound to order it, from the daughter’s it was not. She was partially blind, had Asperger’s Syndrome and exhibited extreme behaviour at school, where she was not settled.

Moreover, CAFCASS had observed a contact session with the father and had reported that the effect on the child was such that it was not appropriate to continue. The CAFCASS and a doctor’s report both recommended that it would be prudent to allow the child to settle into school before trying again and CAFCASS went further to say that even then, contact should not take place without a positive school report. One was not available at the disposal and neither expert was cross-examined.

The Court of Appeal, overturning the judge’s order, found that at the child’s stage of development, the two half-hour sessions were ‘an enormous leap’ and the benefit of waiting as suggested by the experts outweighed any disbenefit to the relationship with her father. The Court of Appeal seems to have been reasonably polite given that the judge a) effectively ignored the welfare checklist &/or b) gave disproportionate weight to the need to conclude matters swiftly and c) gave no consideration to the fair trial rights of the mother who opposed the making of the order but had no opportunity to re-examine the experts who agreed with her, as they had not given evidence.