Judges should consider parents’ interests under Article 8 of the Convention before granting care orders
20 April 2010
EH v London Borough of Greenwich and AA and REA and RHA (through their guardian), A (children)  EWCA Civ 344
This was an appeal against the decision of the judge at first instance granting the local authority a full care order and placement order in respect of the appellant mother’s children. One of the children had been admitted to hospital as a baby with a fracture injury that was diagnosed as being non-accidental, following which both children were immediately taken from their parents’ care and placed with their maternal grandmother.
A later fact finding hearing determined that the baby’s injury had probably been caused by her father and that the mother had failed to protect the baby, although the judge did find that the mother had very many good qualities and her parenting abilities, per se, were not in issue, and that apart from the fracture injury there was no evidence that the children had suffered any harm.
The local authority’s fixed preference however was that the children should be placed away from the mother and as a consequence of that preference it did not actively support the appellant in urging her to separate from the father. There was some confusion as to whether she consequently separated from the father or not. The judge concluded that they were in fact in a continuing relationship. He further held that it was in the interests of the children to approve the local authority’s care plan for adoption and made care orders to that effect. The appellant contended that the judge had erred in his finding of fact that she and the father remained in a continuing relationship with each other; that he had failed to refer explicitly in his judgment to the provisions of the Children Act 1989, the Adoption and Children Act 2002 or the right to private and family life under the European Convention on Human Rights 1950 and therefore implicitly had to have failed either to carry out the necessary balancing exercise or apply the relevant provisions as required by the legislation. She also argued that he had failed to consider whether it was appropriate to make any contact order pursuant to s.26 of the 2002 Act.
Appeal allowed. The judge might have been justified in forming the opinion that the appellant and the father had been seen together on one occasion. But he should have gone on to consider why the mother might have lied and whether the whole of the evidence was capable of proving a continuing relationship about which she had lied consistently over time. Whilst this behaviour might have demonstrated that she could never be trusted to work honestly with professionals for the benefit of the children, there could have been other explanations and he should have considered them.
It was apparent that the judge had not mentioned either the 1989 Act or the 2002 Act or made any reference to the rights enjoyed by both the parents and the children under the Convention, neither was any mention to proportionality made. That absence of analysis was a serious defect which vitiated the judge’s judgment. In particular, in a case where a care plan would lead to adoption, the full expression of the terms of Article 8 had to be explicit in the judgment because there could be no greater interference with family life. Accordingly, any judge had to show how his decision was both necessary and proportionate. In the circumstances, the judge’s final care and placement orders would be set aside and the matter remitted for a fresh final hearing.
COMMENT (April 2010)
The overbearing presence of social workers in family life (ref to Wall) is very much a subject of comment at the moment. It might have once seemed blindingly obvious that children should remain within their birth families unless the facts are such that they have suffered or are at risk of suffering significant harm. However this fact has suffered attrition from what has been called the “negative attitude” of social services towards parents, a “closed mind” which drives everything else in its path, including, quite often, the courts themselves.
The Court of Appeal pointed out in W that however nuanced the requirements concerning the protection of children may be in theory, in practice the “door swings only one way”, and this is the fault of the courts almost as much as the social services. Naturally theirs is the voice that is loudest in court, but in cases such as this, where the judge is asked to make “very draconian” orders,they themselves are under a duty to balance each factor to justify their conclusions and determine whether the final outcome is appropriate. The failure to refer, inter alia, to Article 8 of the Convention is indicative of a certain passivity in the face of forceful submissions advanced by the local authorities; passivity perhaps or what Wall LJ describes as “traps for the unwary” in care proceedings.
The nub of the Court of Appeal’s criticism, not of this particular judge, but of the general anti-parent trend in care proceedings, is to be found in Wall LJ’s description of the various forces at work:
The argument of the local authority is that the children need permanence and security of placement, and that this can only be achieved by adoption. That is one perfectly proper perception. However, there is a raft of alternative arguments, some of which I will develop later in this judgment under the heading “the conduct of the local authority”. Can it be said at this stage and on this evidence that permanent separation between mother and children (one of whom is now five) who have a powerful relationship with each other is in the interests of these children and appropriate? What help has the mother had to break her relationship with the father? What about injunctions and other court orders? What about a continuation of foster care? There are just some of the considerations which need to be addressed. As I said to counsel in argument, this is why we have judges, and why some important decisions in care proceedings are not made by local authorities.
This section is followed by an assessment of the social workers’ conduct in this case which can only be described as damning.
This failure to take into account to the rights of the adult members of the family, under Article 8, undermines the judge’s findings, and is not made good by the prioritisation in all cases of measures to remove the perceived risk of injury to the children. Wall LJ’s well-publicised position on this matter is not only welcome but well-nigh overdue, reminding us of the continuing tension between the executive and the judiciary that recently sparked in the attempt by the government to block Wall LJ’s appointment as president of the Family Division.