In the matter of A (A Child) v Darlington Borough Council and (1) M (2) F (3) GM and GF and (4) A (by his children’s guardian)  EWFC 11 (“Re A”) – read judgment
In a scathing judgment, the president of the Family Division has condemned as “social engineering” a local authority’s application to remove a baby boy permanently from the care of his father and place him for adoption.
The case was, he said,
an object lesson in, almost textbook example of, how not to embark upon and pursue a care case.
In addressing these failings, Munby P identified “three fundamentally important points”.
The first point, vital for practitioners on the ground, is that findings of fact must be based on evidence, not suspicion and speculation. As the judge observed, material in local authority files is often second or third-hand hearsay. Although hearsay is admissible in care proceedings, if challenged, a local authority will have to establish its accuracy.
In this case, the original social worker’s “concerns” about the father were repeated and adopted by other practitioners (including the children’s guardian), without further enquiry. When the case reached court, that enquiry revealed what Sir James described witheringly as
a tottering edifice built on inadequate foundations.
Stripped of suspicion, speculation and hyperbole, the majority of the factual case collapsed and was reduced to familiar assertions that the parent “lacks honesty with professionals” or “minimises matters of importance”.
The second fundamental point is that a successful application for a care order must link the facts relied on to the threshold test, i.e., why do the facts asserted lead to the conclusion that the child is at risk of suffering significant harm?
In this case, the local authority thus had to show how the fact that the father had had sex with an underage girl of 13 when he was aged 17, affected his ability to care for his baby son some six years later. How did the social worker’s complaint that he “failed to acknowledge the immoral nature of the offences committed” support the assessment that his child was at risk of neglect?
The judge was equally unimpressed by the local authority’s “concern” about the father’s involvement with the English Defence League (EDL) – referred to in the social worker’s assessment as “a barbaric protestor group”. The fact (“if fact it be”) that the father was a member of the EDL (“probably only for a short time”) was, he said,
neither here nor there, whatever one may think of its beliefs or policies.
The social worker’s repeated reference to the “immoral aspects of the father’s behaviour”, prompted the judge’s third fundamental point that, in the “wise and powerful words” of Hedley J in Re L (Care: Threshold Criteria  1 FLR 2050:
society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent…some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.
In the same vein, as Baroness Hale explained in the celebrated Supreme Court decision In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33:
We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the state does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical and mental illnesses or who espouse antisocial political or religious beliefs.
In this case, local authority concerns also included an alleged “history of drug abuse”. Once probed, the evidence established the father “may have taken cannabis on occasions”. However Sir James observed,
the reality is that many parents smoke cannabis on occasions without their children coming to harm… [P]arental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.
On the positive side, the father was recognised to love the child, to be capable of meeting his day-to-day needs and to have shown commitment in supervised contact. Taking account of the “greatly weakened” local authority case and “surveying the wide canvass”, the judge concluded
I can accept that the father may not be the best of parents, he may be less than a suitable role model, but that is not enough to justify a care order, let alone adoption.
Although the judgment makes no express reference to the Article 8 right to family life, it boldly applies the Strasbourg-inspired requirement (expressed by Baroness Hale in In re B) that those seeking to sever the ties between parent and child must establish that “nothing else will do”. Consistent with the child’s welfare, everything must be done to preserve the family. It is not enough to show that a child could be placed in a more beneficial environment. Some express concern that this approach thwarts adoption, to the detriment of the child.
Of course it is wrong to allow children to languish in care, being moved from carer to carer rather than being found a new permanent home, when it is clear that their parents are incapable of looking after them. But reaching this conclusion, given its profound and irreversible consequences for parent and child, requires decision-making of the utmost rigour.
Detractors of the Human Rights Act – and the Convention – focus invariably on obstacles to deporting foreign preachers of hate. It is possible to acknowledge such frustrations and but it is worth taking pause to contemplate that there is a good deal more to the Human Rights Act. In these cases, Article 8 is deployed to moderate the exercise of a draconian state power (what decision could matter more to a parent than the loss of their child?), and to provide those on the receiving end – especially the inarticulate or the unpopular – with the means to challenge its use. In an honest appraisal of the Human Rights Act, this line of jurisprudence must surely be counted as a plus.
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