On 23rd March 2016 the judgment of the Court of Appeal in Re FM (A Child)  EWCA Civ 189 was published. This was an appeal from a decision of HHJ Bond sitting in the Bournemouth Family Court in November 2015. The decision appealed against was the decision to make a special guardianship order to place the child in the care of the maternal aunt and uncle rather than return the child to the mother’s care. The case is interesting as it illustrates the real difficulties in arguing for the return of a child to a parent’s care, especially where there is a favourable alternative family placement available. The case strikes a cord with many of the cases in which we are involved on a day-to-day basis. On the one hand in this case, here was a mother who was bright and well educated and had much to offer the child; her difficulties on paper not being so great perhaps, that work could not be done with her to work towards rehabilitation. She had on and off for most of her life suffered from depression, which at times had meant she was not fully able, to meet the child’s needs. The expert evidence however gave a guarded but positive prognosis about her ability to make changes and sustain her recovery. This however was not a single-issue case, and concerns remained, amongst others, regarding the mother’s ability to meet the emotional needs of the child and whether the parent’s relationship had genuinely come to an end. Had no such other concerns been established the mother would no doubt have had a much stronger case.
The main argument appears to be the crucial one that advocates acting on behalf of parents often run. If there is sufficient confidence that the parent could make positive changes within a short period, should the court therefore not place too much emphasis on the delay principle and order that rehabilitation be attempted for the long-term benefit of the child? Are parents too often ruled out because of the need for certainty at that point in the proceedings and perhaps the looming pressure of 26 weeks deadline in care proceedings? It often appears that there is a real lack of a true analysis about what support could actually sustain rehabilitation save for in the most straightforward cases.
In ruling out the parents, the judge as the court of appeal confirmed, the judge had carefully considered all of the realistic options and the advantages and disadvantages of the placement options and undertaken the necessary difficult balancing act. The grounds of appeal were well considered and well put; the most persuasive argument perhaps being that the judge placed undue weight on the need to avoid delay when the evidence of the expert was guardedly positive about the mother’s prognosis and when local support services and family may have been available. The essential question in the appeal was whether the trial judge had been wrong to conclude that F should live with the maternal aunt and uncle. The court of appeal found he was not.
The court was asked to consider the reasoning behind the introduction of special guardianship and the observation of Ward LJ in Re L (A Child)(Special Guardianship Order and Ancillary Orders)  EWCA Civ 196 at paragraph 31: “It is a halfway house between a residence order and an adoption order. Its purpose is to provide permanence short of the legal separation involved in adoption.” The argument run was that this was not a case in which permanence just short of adoption was required. The expert evidence was that the mother’s mental health had been stable for nearly a year with low/medium chances of relapse giving a general positive prognosis of improvement. The Mother also held down a demanding career and had a network of support for periods of relapse. It was argued that the child was not in a temporary placement so any delay to explore the prospects of reunification would not cause him harm as his current living arrangements would not change. Rehabilitation had good prospects of success, and in these circumstances it was necessary and appropriate to extend the timetable to enable the scope for reunification to be further explored.
The LA, Guardian and the maternal aunt and uncle, in short, prayed in aid that this was not a single issue case; the main issue of course being the potential for relapse of the mother’s mental health, and the need to make decisions for a small and vulnerable child to place him in a settled placement asap. The CA did not consider that the judge gave the delay principle undue weight. The judge was aware of the article 8 rights of the parents and from the outset assessed whether there were compelling reasons why F should not be brought up by his parents.
The CA considered that the judge had considered the evidence concerning the mother’s mental health at considerable length. He reminded himself that the court must be careful not to discriminate against someone seeking to care for a child on the grounds of mental illness. He accepted the evidence that the mother’s mental health problems did not prevent her meeting the practical needs of the child. . The judge further crucially however accepted that were there to be a relapse, there was “a real and substantial risk that cannot be ignored that the mother may endeavour to hide the deterioration of her mental health from professionals if F was with her for fear that he might be removed”.
The judge’s view was that, whilst there was some course of optimism in the prognosis of the mother’s mental condition, there was still concern about the potential for a further relapse and how such an event, if it occurred, would impinge upon her care of F. Taken by itself, this might be insufficient to justify the interference in family rights. In addition, however there were several other factors which significantly added to the risk of emotional harm to F.
It would have been open to the Judge as the court observed to make a child’s arrangements order instead of a special guardianship order. This would have left open the possibility of a change of those arrangements if the mother’s mental health continued to improve and the risk arising out of the other factors diminished. This argument was however not advanced either at first instance or before the court appeal. Often CAO’s are considered the poor relation given that they do not come with a package of support and financial and other duties imposed on the LA for the benefits of the family carers.
Clearly the child’s need for a settled environment sooner rather was a factor given considerable weight, but it arguable that all too often certainty is favoured over the more complicated and less certain rehabilitation route. The case is interesting as it is noted that the LA developed a much more detailed plan of support in the SGO support package as a result of the case being appealed to tackle one of the main issues of concern; that being namely the acrimony between the mother and the prospective special guardians. It does beg the question, do LA’s and the courts consider in enough depth what support could be put in place in such circumstances and whether more family placements should be the subject of Child arrangements orders were rehabilitation might be a possibility in medium to long term. Clearly if the issue was purely the mother’s mental health and risk of relapse it is easy to see that support could have been put in place to perhaps meet the needs of the child during any periods of relapse. This case highlights the difficulties of mounting arguments on behalf of parents where there is no single issue of concern and where a certain family option is on offer. The court needs a high level of confidence in the honesty and trustworthiness of parents and their ability to fully co-operate for the court to entertain the risk of adjourning off to allow rehabilitation to have a chance of success. Judges will of course have in mind the child’s welfare rather than applying the 26 weeks deadline too stringently but the case has to be strong in order to be able to persuade the court to do so. The tensions will therefore continue between the delay principle, the need for certainty and attempted rehabilitation to the parents; the days being long gone where cases could be adjourned for a period of 3 months for example to oversee attempts at rehabilitation. It is a matter of concern that we have perhaps gone too far the other way and courts and parent’s advocates will need to be increasingly inventive to give rehab a real fighting chance.