Pump Court Chambers

An object lesson

Blog 11th March 2015

The advocates in the matter of Darlington Borough Council v M, F, GM & GF & A [2015] EWFC 11 must have experienced something of a shock when they were told that the final hearing in a case that could be described as fairly ordinary, and had initially been allocated to Justices, would be heard by none other than the President of the Family Division himself.

For the local authority, and to some extent the Children’s Guardian, that was not the last shock they were to experience.

In his reserved judgment, handed down on 17 February 2015, the President does not mince his words, describing the case as “an object lesson in, almost a textbook example of, how not to embark upon and pursue a care case”. He dismissed the LA’s applications for care and placement orders and at para 98 said the following of the LA’s handling of the case as set out in different paragraphs throughout the judgment:

“They demonstrate significant failings in social work practice, in case analysis and in case management. There are lessons to be learnt, not just by this local authority and its staff but also by practitioners more generally.”

So, what are these lessons?

The facts of the case are, as mentioned above, not terribly unusual: A was born on 11 January 2014, whilst his mother was in prison for a number of offences, including sexual offences against minors. Prior to A’s birth, the LA carried out assessments of the mother, the father and the paternal grandparents. The LA’s concerns about the father included his alleged lack of insight into the risks posed to A by the mother and his new partner J, his lack of honesty and openness with the LA, the fact that he had at the age of 17 engaged in sexual intercourse with a 13-year-old girl, his membership of the English Defence League, his use of alcohol and cannabis, and his involvement in physical altercations with his mother and step-father.

As is sadly also not unusual, despite the fact that the LA concluded even before A was born that neither parent would be able to care for him, the LA did not issue care proceedings until September 2014, when A was 8 months old. In the meantime, A was accommodated in foster care pursuant to s.20 Children Act 1989.

By the time of the final hearing, the father was no longer in a relationship with the mother or with J and he was putting himself forward as a sole carer for A. The mother and the paternal grandparents supported the father’s case. The LA sought a full care order and a placement order. The CG supported the LA’s applications.

The President was scathing of the LA’s evidence, observing at para 28 that its case “was a tottering edifice built on inadequate foundations”.

Having heard oral evidence from the team manager, the second social worker, the mother, the father, the paternal grandmother and CG, the President at para 93 found only the following allegations proved:

  1. The father is immature and can sometimes act irresponsibly. […] he seems to have a tendency to fall very quickly into unsatisfactory and short-lived relationships.
  2. In some instances, though not to the extent alleged by the local authority, the father has minimised or played down matters which were properly of concern to the local authority. He has not always been open and honest with professionals. He failed to appreciate the significance of his actions in relation to J.
  3. To an extent the father is lacking in insight regarding A’s needs and minimises some aspects of his character and behaviours which may bear adversely on A.
  4. On occasions the father drinks to excess. On occasions he has taken cannabis. There have been episodes of domestic discord between the father, his mother and his step-father, involving the police and, on occasions, actual violence.

Taking these findings as his starting point, the President asked himself at para 93 whether they sufficed to “establish a real possibility that A will suffer significant harm” and, even if it did, whether the LA had “established that A’s welfare requires that he be adopted, that ‘nothing else will do'”. At para 95, the President answers both questions in the negative. At para 96, he concludes that, whilst the father may not be the best of parents and less than a suitable role model, that is not enough to justify a care order, let alone adoption. Permanently removing A from his father’s care in these circumstances would, in truth, be social engineering and that, the President reminds the court, is a risk we must guard against.

The lesson the President draws from this case is that three fundamentally important points are too often overlooked. These can be summarised as follows:

  1. It is for the local authority to prove, on a balance of probabilities, the facts on which it seeks to rely. (para 8)
  2. The local authority must demonstrate why the facts on which it relies justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of a particular type or types. (para 12)
  3. Neither the local authority nor the court is in the business of social engineering. Committing crimes, abuse of alcohol or drugs, physical or mental illness, antisocial political or religious beliefs, and even a degree of domestic violence, are not factors that in and of themselves disqualify a parent or parents from looking after their children. (paras 14-17)

Parents may take comfort from point (3), local authorities will do well to remember point (2), in particular, and Children’s Guardians may find para 97 of the judgment uncomfortable reading, but a useful reminder of their role as independent scrutineers of local authority evidence. Whichever applies, this is a judgment well worth reading.

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