Family comes first (even if they’re in Poland)
10 July 2014
P (A Child) [2014] EWCA Civ 888 – read judgment here.
1 Crown Office Row’s Martin Downs represented the parents in this appeal (not at first instance), but is not the author of this blog post.
In this successful appeal against care and placement orders in respect of a young infant with Polish parents, the Court of Appeal were sharply critical of comments made by the first instance judge which made it clear he had closed his mind at an early stage to the possibility of the baby being looked after by her grandparents in Poland. The Court held that both the judge and the local authority had failed to give sufficient weight to their positive obligation under Article 8 to consider ways of retaining a child within the family.
The parents in this case were Polish nationals who moved to England in 2011. Their daughter was born in September 2012. For the first five-and-a-half months of the little girl’s life, there were no concerns about the care she was receiving from her parents. However, in February 2013 she was taken to her local hospital in Warrington with a head injury which was found to be non-accidental and probably inflicted by the father. On discharge from hospital the baby was taken into foster care. Proceedings were instituted and after several hearings before HHJ Dodds concluded in December 2013 with an adoption placement.
There was no challenge to HHJ Dodds’ determination that the injury was non-accidental, that the father was the perpetrator, or that the parents lied to the health authorities, social services and the court. However, the approach of the judge and the local authority to alternative placements within the family, instead of adoption, was attacked. The key issue was what was said by HHJ Dodds at a hearing in July 2013.
At that hearing it was suggested that the baby girl could be looked after by her paternal or maternal grandparents in Poland, but HHJ Dodds expressed concern that if that were done the father would simply reappear and commented:
England will not wash its hands of children who are here…That is one huge difficulty about considering family members who are natives of and residents in Poland. If you do not like it, there is always the Court of Appeal. Good luck.
He went on:
If it is not safe in this country, it would not be safe in Poland. So, if anybody has the notion that the solution is rehabilitation to a member of the extended family in Poland, I would not share that sentiment in those circumstances. There we are.
Despite this forthright expression of the judge’s views, the local authority still undertook to meet the grandparents when they visited Warrington in September 2013. However, in fact the local authority failed to have such a meeting. Instead the local authority invited the maternal grandmother to a meeting after she had already returned to Poland and she received the letter just the day before the next case management hearing, at which the local authority informed HHJ Dodds (somewhat misleadingly, though not intentionally so) that the grandparents had been contacted but had failed to respond. As a result the possibility of the baby going to live with her grandparents was never really explored.
Judgment
The Court of Appeal were clear that HHJ Dodds’ comments indicated he had formed a concluded view at a very early stage, in July, that a placement in Poland was not worth pursuing, before any real consideration had been given to whether it might work. This meant that such an option was ruled out an an inappropriately premature stage. Moreover, the judge’s comments showed a failure to comply with his positive obligation under Article 8 to carefully consider ways of keeping a child within her family. Arden LJ referred to the case of TP v. United Kingdom, in which the European Court made it clear that whilst there is a wide margin of appreciation afforded to national authorities in relation to decisions about whether to take a child into care, strict scrutiny under human rights law is called for where there are any subsequent restrictions on family life, such as limits on contact, reduced parental access or interference with other family relations. The Court of Appeal also held that the local authority had failed to comply with its Article 8 obligations by failing to meet with the grandparents and consider whether a placement with them would work, notwithstanding the judge’s comments.
Comment
Article 8 is relied on in many different ways in a wide variety of challenges. Most of the time it is used as a shield against State interference with family life, for instance in challenges to removal decisions in the immigration context. However, this is an interesting example of the positive obligation to take steps to keep families together so far as possible, an aspect of the right which is less well utilised. In the context of family law, it is a sharp reminder that judges and local authorities have to take seriously their Article 8 duties to explore alternative family placements before considering an adoption order, including with families abroad. Indeed, in a series of judgments recently, including Re E, Munby J has stressed how international many family law cases now are, but that with cooperation between different countries’ courts and social services through mechanisms such as the ‘Brussels II’ EC Regulation, the practical problems this produces can be overcome.
The other notable aspect of this case is that the importance of the underlying right and seriousness of the error helped the appellants get over some fairly difficult time limit problems. Recent reforms have emphasised that judges should manage cases efficiently and hold parties strictly to procedural rules and time limits. Moreover, there are specific tight time limits placed on care proceedings – they must now be completed within 26 weeks. No-one appealed the comments of the judge immediately in July 2013, or even within anything like the applicable time limit thereafter. The Court noted that this was “regrettable, and a lesson for the future for parties who find themselves in such a position that a prompt, early appeal on this sort of point at that stage is to be seriously considered.” But despite the delay in appealing, and despite the 26-week overall time limit, the Court of Appeal was still willing to entertain the challenge and uphold it, with an indication that (against much of the prevailing mood recently) the need for robust case management should not prevent a meritorious appeal from being considered. It seems likely that the human rights element assisted with this, as did the effect on the little girl at the centre of the proceedings.
Overall, this is a helpful reminder that it is dangerous for judges to predetermine issues or shoot from the hip whatever the pressures on them to deal with cases quickly. Ultimately the courts’ job is to do justice and so, whatever other pressures they are under, these cannot get in the way of that crucial principle.
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Related posts:
- Challenging adoption order using human rights
- When adoption without parental consent breaches human rights
- Court of Appeal laments systemic failures in family justice
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