Summary of Recent Case Law (Family: Children) – April to June 2018

Fact-Finding: Ground Rules

Re M-Y (Children) [2018] EWCA Civ 1306

McCombe and King LJs

P was the eldest of 4 children. P alleged that she had been physically chastised by her mother (M) including punching and kicking and sexually assaulted by M’s partner (S), after moving from Romania to live with them in the UK. Following ABE interview, the LA issued care proceedings.

On the first day of the fact-finding hearing, the judge at first instance gave ground rules directions which included: that P should give evidence but that questions would be limited to issues raised concerning the findings sought against the parents; questions would be asked by the judge and not by counsel.

The judge found that whilst P had told lies about peripheral matters, this did not undermine her credibility on the core allegations. Findings were made against M and S.

M and S appealed.


Appeal allowed

-M and S had made forceful points about P’s credibility, in light of her discrepancies. The judge did not really engage with the points that M and S were making and did not give this sufficient attention in the judgment

-The judge’s case management had undermined M and S’s ability to challenge the case being put against them: The judge had ruled that information about P’s background in Romania was only relevant to ‘welfare’. However, the judge had relied on P’s account of the circumstances in Romania to inform her views about the credibility of P and M in support of her findings on threshold, without allowing any questions of P on behalf of M and S.

The way in which the evidence had been “assembled under the judge’s directions” had undermined S’s ability to challenge the very serious allegations against him.

NB LJ McCombe called for tailor-made directions with regard to child evidence in cases such as this.


Re T (A Child) [2018] EWCA Civ 650                 

LJs McFarlane, Peter Jackson and Newey

The LA sought care and placement orders in respect of an 18 month old child. The judge gave a lengthy and thorough judgment, finding that threshold was made out and that there were only two realistic options: placement with the PGM or placement for adoption. By a narrow margin, the judge determined that the best outcome for the child would be placement with PGM, though she would require a higher than usual number of statutory visits and probably for longer than 12 months. The PGM’s application for approval as a foster carer had been refused. The judge adjourned her final decision so that PGM could be re-presented to panel, with disclosure of her judgment. At panel the SWs did not advance the judge’s assessment. Indeed, they contested it. The panel refused to approve the PGM and the ADM accepted their decision. The court reconvened. The judge concluded that as her findings ruled out PGM unless placement with her could be bolstered and as the LA had refused the PGM as a kinship foster carer, the judge had no choice but to make care and placement orders because she had no power to compel the LA.

The PGM appealed


Permission to appeal was granted and the appeal was allowed. The case was remitted for a re-hearing before a different judge, limited to the issue of further consideration of the PGM’s position.

An application for a placement order fundamentally engages Article 8, which applies to local authorities and to the court, as public bodies. This common purpose means that in the great majority of cases the LA will acknowledge the court’s welfare decision and if necessary, amend its Care Plan to accommodate it. Where that does not happen, the remedy of judicial review is available.

The court cannot dictate to the LA what its care plan should be, nor can it maintain supervision or control after a final order. However, it is not open to a local authority within proceedings to decline to accept the court’s assessment and evaluation of risk, which is sovereign within proceedings and it cannot refuse to provide lawful and reasonable services if by doing so, it would unlawfully breach the rights of the family or if its decision-making process is unlawful on public policy grounds.

Although the court cannot dictate the LA’s care plan, the court can expect a high level of respect for its assessment of risk and welfare, leading in almost every case to those assessments being put into effect. The court has a power and a duty to assert its view of risk and welfare by whatever is the most effective means.

Wardship can exceptionally be available when other avenues are blocked: Re W and X (Wardship: Relatives Rejected as Foster Carers) [2004] 1 FLR 415

The judge had carried out a thorough fact-finding process and a careful welfare evaluation, leading to her conclusion that placement with the PGM was in the child’s best interests provided that the LA made the necessary services available. This was the judge’s first preference in promoting the child’s welfare and respecting the A8 rights that were engaged.

The fostering panel had come to a different conclusion, but on much more limited data. The ADM gave no indication of exercising an independent judgment other than a simple endorsement of the panel’s recommendation.

The judge was wrong to make a placement order because:

  1. The judge had underestimated her powers. She should not have accepted the LA’s unchanged position without calling it to account. Theirs was an unconvincing response to the judge’s careful assessment of risk and welfare
  2. The judge was wrong to accept the LA’s argument that whether the child should be placed with the PGM was not a matter for the court
  3. Even where the LA maintained its refusal to approve the PGM, it was still necessary for the judge to re-evaluate the remaining options for the child’s future. The judge effectively boxed herself in. Had she looked at matters afresh, she would have inevitably confronted the fact that the child was being sent for adoption as a direct result of a decision of a non-court body, ‘an outcome unprecedented in modern times’. She would then have been able to weigh that prospect against a range of lesser orders, in order to arrive at a valid welfare outcome.
  4. The ADM was not obliged to follow the panel’s recommendation, nor was the ADM responsible for the case put by the LA to the court. The judge’s further investigations would have led her to better understand who was ultimately directing the LA’s thinking and to achieve an effective engagement with them until the issue had been satisfactorily resolved.

Purposeful Delay

P (A Child) [2018] EWCA Civ 1483     

Davis LJ, King J and LJ Moylan

M had a significant history of drinking, rehabilitation and sobriety followed by relapse. Care proceedings were issued in relation to her child B. M was referred to an alcohol treatment programme for 6 months. She made good progress and B was rehabilitated to her care under a supervision order. Subsequently, M relapsed. The LA applied for a care order. B was placed in the interim, with the paternal grandmother.

During the above proceedings, L was born. L was removed at birth and placed with foster carers. The LA plan was for adoption. M was offered no support. M sourced her own support and wore a SCRAM bracelet. M had contact with L 4 times per week. Throughout the proceedings, M remained sober and the quality of contact was good. By the time of the final hearing, M had begun to develop insight into her addiction and its effects on the children. There was a positive expert report.

By the time of the final hearing L was aged 7 months. M sought an adjournment for a period of 6 months. The LA sought final care and placement orders. The judge described M’s progress as “green shoots”. She concluded that there was a real risk of relapse and of M not being open and honest with professionals. The judge made care and placement orders. M appealed.


The judge had been wrong to make final orders and not grant the adjournment:

The judge had placed too much emphasis on M’s historic lies. She failed to set the undoubted and serious concerns against M’s genuine and significant progress. Going forward, it would be possible to assess M’s future level of honesty in the context of sobriety with a developing understanding and insight on her part.

Insufficient consideration was given to L’s young age and that the adjournment sought was one in which M could demonstrate real change within L’s reasonable timescales

Note: The CA noted that the appeal process lasted 6 months. The CA criticised the LA for reducing M’s contact to once per week during this time. Once permission to apply had been granted, the better way would have been for the LA to engage with M and continue to assess her.

Re R [2018] EWFC 281

Baker J

The child had a number of disabilities that meant she would require care for the rest of her life. The child suffered a life-threatening event. About 2 months later, she returned home. A month later, M refused to approve giving antibiotics to the child. The LA applied for an ICO and the child was moved to a specialist residential placement. There was suspicion that M, believing that it was not in the child’s interests to satay alive, might obstruct her treatment.

There was an expert assessment of M which concluded that M would require “attunement work” including long-term psychodynamic psychotherapy/ counselling. There was an issue as to whether the court should make a full care order or adjourn the interim care order to allow time for M to undertake the therapy/ counselling.


M’s decisions were at times chaotic and not in the child’s best interests. The child had been at risk of significant harm due to M’s refusal to consent to antibiotics being administered. At the commencement of the proceedings, it was M’s view that the child’s quality of life was so poor that in the event of a further life-threatening event, the child’s treatment should be restricted. Accordingly, there was a likelihood that the child would suffer significant harm.

The judge concluded that the care plan which provided for the child to remain at the specialist residential placement represented the best outcome for the child in the circumstances. The LA was commended for agreeing to fund M’s therapy/ counselling adding that he could not recall a case in which this had happened.

Special Guardianship

P-S (Children) [2018] EWCA Civ 1407

Sir James Munby President of the Family Division

Sir Ernest Ryder Senior President of Tribunals

Sales LJ

At the final hearing, the parties all agreed that SGOs should be made in favour of the two children’s respective PGPs and invited the court to make such orders of its own motion. The PGPs were not parties to the proceedings, were not represented and did not have access to the court papers.

The judge was concerned that neither child was living or had lived with its respective PGPs and so the proposed placements had not been tested. Relying in part on some guidance letters that had been circulated by a High Court Judge, the judge made final care orders, intending them to be of short duration to test the placements. The judge envisaged that SGO applications would then follow.

The Association of Lawyers for Children intervened on an appeal against the final care orders.


Appeal allowed.

The concept of short-term care orders is flawed. There is no mechanism for a care order to be discharged on the happening of a fixed event or otherwise to be limited in time. The exercise of PR by a LA cannot be constrained once a full care order is made other than on public law principles of unlawfulness, unreasonableness and irrationality. If the LA had not in due course applied to discharge the care orders, it would have been left to the PGPs to do so. The PGPs would have had to pass the test for leave to make that application in circumstances where they would not be eligible for legal aid and unlikely to be funded by the LA.


LCC v AB and Ors [2018] EWHC 1960 (Fam)

Keehan J

M was suffering from terminal cancer. The illness and the effects of her treatment affected both her physical and mental health. She asked the LA to make alternative care arrangements. Care proceedings ensued. During the court proceedings, the mother did not waiver in her support for the children continuing to be looked after by their foster carers. She was co-operative with the LA in how to manage her contact so as to make it safe and enjoyable for the children. M prioritised the children’s welfare at all times. M agreed to the children remaining accommodated and she agreed to them being made wards of court.

The LA argued that final threshold was crossed on the basis that the mother “… was unable to meet their [the children’s] basic care needs as a result of her health difficulties”.

M responded that “she acted as a perfectly reasonable, loving, caring mother and requested that the children be cared for by the local authority”


Keehan J found that threshold was not crossed on the ‘attributability criteria’. In any event, the fact that the mother was terminally ill did not deprive her of the right as their parent to make decisions about where they live and about whom they will live with in the future.

Withdrawing Care Proceedings

A Local Authority v X, Y and Z (Permission to Withdraw) [2017] EWHC 3741 (Fam)

McDonald J

The parents had past links with members of a banned terrorist organisation. The parents did attend demonstrations and meetings. On occasions the mother had taken the children along. Having initiated care proceedings fuller investigation by the LA satisfied it that whatever the parents’ views, there was no evidence of the children becoming radicalised or exposed to extremist material. The children were relatively disinterested in religion and politics and were well cared for. The LA sought leave to withdraw.


McDonald provided a useful review of the law relating to the withdrawal of proceedings. In applying the law to the facts, he concluded that the LA would be unable to satisfy the threshold criteria and therefore the application was granted.

C (A Child-Application for dismissal or withdrawal of proceedings) (No.3) [2017] EWFC 37

Pauffley J

SO15, the Counter Terrorism Command of the Met Police had been investigating the family. The Secretary of State for the Home Office succeeded in an application for Public Interest Immunity (PII) (reported as Re C (A Child) No 2 (Application for Public Interest immunity) [2017] EWHC 692 Fam).  There were concerns that the parents had an extremist mind-set, terrorist sympathies and a desire to exit the country with their child to travel to a war zone.

The LA sought to withdraw or have the care proceedings summarily dismissed because they could not meet the evidential hurdle for threshold, given the PII ruling.

The Guardian opposed the application on the grounds that it was inherently contradictory that there is an inherent incongruity between one arm of the state maintaining that the father is a terrorist with extremist views whilst another arm (the LA) contended that it was powerless to take any steps to protect the welfare of the child.


The court has a statutory duty to regard the interests of children as paramount. The court’s role is inquisitorial and the concept of summary dismissal is alien to this.

As to permission to withdraw, Pauffley J considered the nine factors identified in A County Court v DP, RS, BS [2005] EWHC 1593 and refused the LA permission to withdraw. To do so would deny the child justice