Care and placement orders

In Darlington Borough Council v M, F, GM and GF and A (by his children’s guardian) [2015] EWFC 11, the President of the Family Division, Sir James Munby, characterised the case as ‘almost a textbook example of how not to embark upon and pursue a care case’.

Unsuitable relationship

The child’s parents had been in a relationship for six months before the mother was sent to prison for, among other things, sexual offences relating to a child. The father put himself forward as carer, but the local authority’s assessments concluded he was unsuitable.

They relied on the fact that he was immature and occasionally irresponsible, falling quickly into unsuitable and short-lived relationships, minimising important matters, and not always being open and honest with professionals. In particular, it expressed many concerns about the ‘immoral’ nature of his behaviour, such as drinking alcohol and smoking cannabis.

The president dismissed both the local authority’s applications for care and placement orders. In his view, it had failed to establish that the child would suffer significant harm in his father’s care, with the local authority proceeding on assumptions and speculation about the father’s future behaviour which were not supported by evidence. Aspects of his past were not ideal but, if that was treated as grounds for care proceedings, the system would be overwhelmed. The father might not be the best of parents, or a suitable role model, but that was not enough to justify a care order, let alone adoption.

Neither social services, nor the court, were the guardians of morality. The justification for state intervention was significant harm to the child and, in this case, the local authority had failed to link the facts upon which it relied with their assertion that the child was at risk.

Tottering edifice

There were three fundamentally important points relevant to applications for care orders. First, the local authority had to prove the facts on which it relied, which meant being able to call witnesses who could speak of matters first-hand and not make allegations using terminology, such as ‘he appears to have lied’. Such terminology confused the distinction between an assertion of fact and the evidence needed to prove the assertion.

As the president said in Re A (A Child) (No 2) [2011] EWCA Civ 12: ‘The elementary proposition [is] that findings of fact must be based on evidence (including inferences that can be properly drawn from the evidence) and not on suspicion or speculation.’ A seemingly impressive case could, in reality, be ‘a tottering edifice built on inadequate foundations’.

Second, a local authority had to link the facts relied upon with its case on threshold criteria so that it could demonstrate exactly why it thought a child was at risk of significant harm. Where emotional harm or neglect was concerned, the link was not always obvious: Y (A Child) [2013] EWCA Civ 1337. Does, for instance, an allegation that the father ‘is immature and lacks insight of issues of importance’ feed through into a conclusion that the child is at risk of neglect?

Third, and most crucially, it was vital for local authorities, social workers, children’s guardians, and family judges to bear in mind the powerful message in the leading authorities such as Re L (Care: Threshold Criteria) [2007] 1 FLR 2050. As Mr Justice Hedley said in that case, ‘society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent… These are the consequences of human fallibility and it is not the provenance of the state to spare children all the consequences of defective parenting.’ SJ

For more on this case, go to our children update.

District Judge Julie Exton sits at Bristol Civil and Family Justice Centre. She is president of the Association of Her Majesty’s District Judges