Prospective adoptive child will not be taken from blind woman, for now

Child-care-007RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013) – Read judgment

This case, described by Cobb J as an “unusual and troubling” case, concerns a 1 year old girl “SB” and a woman “RCW”. SB was born prematurely, at 27 weeks, weighing just 1 kg; almost immediately she was abandoned by her natural mother.

She spent many months in the Special Care Baby Unit. In October 2012 SB was matched with RCW, a single woman who worked as a project manager for the NHS. In January 2013 things took an “unexpected and wretched turn” in the form of RCW’s diagnosis with a brain tumour. Hurriedly, RCW made arrangements with a cohort of friends to care for SB while RCW underwent surgery to remove the tumour which was situated near the optic nerve. The operation, whilst successful in removing the tumour, left RCW without sight; it is not known whether the lack of sight is temporary or will be permanent.

When RCW returned from hospital, a social worker made a brief assessment of her interaction with SB. There followed two meetings of the local authority, which RCW was not invited to attend, at which it was decided to remove SB from her care. Having been informed over the telephone of this intention to remove, RCW lodged an application to adopt SB. There followed written confirmation of the intention to remove and a letter from the local authority to RCW’s solicitors warning that unless RCW co-operated in the removal, she would be committing a criminal offence. RCW responded by applying for an injunction to prevent the local authority taking steps to remove SB.

Application for injunction

The application for an injunction was made on various grounds. First, if RCW’s application for adoption was “made” before receipt of the local authority’s letter indicating an intention to remove then under the Adoption and Children Act 2002 there would be no requirement immediately to return the child to the local authority, unless the court so ordered.

Second, removal of SB was said to infringe RCW’s Article 8 right to a family life with SB.

Third, it was argued that RCW had not been given a fair (or indeed any) opportunity to be heard before the decision to remove SB was made by the local authority.

Fourth, the decision to remove was argued to be discriminatory under section 15 of the Equality Act 2010 as being less favourable treatment “arising in consequence of” RCW’s disability.

Fifth, it was argued that, as a question of fact, the care arrangements made by RCW for SB’s care whilst RCW was in hospital and recuperating were adequate and there was no evidence that SB’s care was actually being compromised.

Sixth, it was pointed out that RCW had requested that the defendant local authority as well as the local authority in whose area she actually lived provide assessment and support but that these requests had not yet been taken up. It was further emphasised that the prognosis for RCW’s sight was unclear and, as the judge commented, the authority had “only made the most perfunctory of enquiries about RCW’s medical condition before reaching its decision”.

For its part, the local authority, in resisting the grant of the injunction, placed emphasis on the need to avoid disruption to SB’s care, particularly in view of the fact that SB had experienced such a disrupted early childhood already. It was argued that further disruption could be avoided by moving SB to another home in order to secure as soon as possible a strong and secure emotional attachment to a primary care-giver. The local authority argued against any “drift” in making alternative arrangements for the care of SB although, as the judge pointed out, somewhat inconsistently with this emphasis on urgency, if not permitted to exercise its power of removal as of right, then it was not minded to apply to the court for an order for removal, preferring instead to await the outcome of the adoption application.

Cobb J noted that there was evidential uncertainty about whether RCW had indeed “made” her adoption application before being informed in writing of the intention to remove SB – this turned in part on the interpretation of whether “made” meant having lodged an application or it having formally been issued (without deciding the point, Cobb J was inclined to the former interpretation).

Unfair approach

 

More substantially though, the judge considered that the injunction should be granted by reason of the local authority’s unfair approach in making the decision to remove without having heard from RCW. The judge described the decision to remove in such circumstances as “a momentous one” which “has to be a solidly welfare-based decision, and it must be reached fairly”.

There had been little direct observation of RCW’s and her friends’ abilities at the time the decision was made and, importantly, there was little knowledge of RCW’s condition or its prognosis. RCW was not invited to the relevant meetings or approached for her views on her ability to care for SB in the future. The judge therefore found that the local authority had acted in breach of the procedural rights guaranteed by Article 8 (the right to private and family life) and Article 6 (the right to a fair trial) and by the common law principle of fairness.

Stopping short of finding that there had been discrimination within the meaning of the Equality Act, the judge nonetheless found that “in ruling RCW out as a prospective carer so summarily, [the local authority] has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.” The judge also criticised the lack of consideration given by the local authority to providing support for the placement, a matter which was to be addressed “urgently” pursuant to directions made by the court.

The need for careful decisions

The case is indeed (one hopes) unusual in so far as the particular combination of timings and circumstances must be rare, though it cannot be quite so unusual for local authorities to have to take decisions about the care of children (even specifically those who are candidates for adoption) where the health of the primary care-giver is in doubt.

The message from this judgment is that such decisions must be taken on the best information available and affording adequate opportunity to those who are affected for their input, both in terms of information and opinion.In that respect the judgment (mercifully light on citations from case-law) is in the tradition of pre-Human Rights Act cases such as O’Reilly v Mackman [1983] 2 AC 237 or Kanda v Government of Malaya [1962] AC 322, identifying the right to be heard as one of the “twin pillars” of natural justice (the other being the rule against bias). In this case, RCW had not had a fair hearing and the local authority must go back and think again.

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