Local authorities must address parents' learning disabilities

M-H (A Child) [2014] EWCA Civ 1396 concerned the mother’s appeal against a placement order (PO) made in relation to her daughter. The appeal considered whether the first instance judge, Her Honour Judge Jakens, applied the correct test in dispensing the parents’ consent and making a PO; and if HHJ Jakens did, whether she adequately analysed the expert evidence in conducting a proper balancing exercise regarding long-term fostering as opposed to adoption.

The correct test to be applied in this instance is provided by section 52(1)(b) and 1(4) Adoption and Children Act 2002 (ACA 2002), interpreted in the light of Re B-S (Children) [2013].

The Court of Appeal (CoA) dismissed the appeal but gave comment on the application of the “nothing else will do test” (from Re B-S). POs are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests”.

However, the ‘nothing else will do test’ does not work if there is another credible option worthy of examination. A contingency plan suggesting that ‘something else would do at a push’ does not mean that an application for a PO will fail at the outset, either.

The CoA made it clear that it is not sufficient for a judge to blindly follow the opinions of experts, no matter their level of experience. What is necessary is the judge’s evaluation of the evidence that has been presented. As the CoA was satisfied that all evidence had been considered, the appeal failed. However, Lady Justice Macur accepted that “a case which was as finely balanced as this may well have resulted in another judge reaching a different decision.” The key point for local authorities is to not be deterred from seeking a PO if adoption is, in its view, the ‘best interests’ placement plan for the child. Nevertheless, in reaching that conclusion the local authority will need to ensure it has sound and cogent evidence to support its contention that there are no other viable placement options that will meet the child’s needs.

Non-molestation orders

Without notice applications again came under the High Court’s gaze in JM v CZ [2014] EWHC 1125 (Fam). Here, it had become apparent during the proceedings, under Part IV Family Law Act 1996 (FLA 1996), that an ex parte non-molestation order had been made for a period of 12 months, with a provision for the respondent to request a return hearing or apply on 48 hours’ notice to vary or discharge the order. This practice had developed to protect those seeking non-molestation orders from having to attend court twice as, in majority of cases, the alleged abusers did not attend return dates.

Justice Mostyn found that the order made by the district judge did not comply with the statutory requirements of section 45(3) FLA 1996: “If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing”.

Mostyn J considered that absence of a return date hearing was not a proper process and merely granting the respondent liberty to apply for a return date hearing does not cure this. The practice must now be that a return date should be fixed but that the respondent must confirm in writing to the court and the applicant, within an agreed time that they will be attending the return date hearing. The judgment also reminds practitioners that the applicant, at the very least, should provide short informal notice to the respondent unless it is essential that he or she is not made aware of the application. Where notice (in any form) is not given an explanation must be provided to the court and the court must itself record on the face of any order why it was satisfied that no or short notice was not given.

A new form of non-molestation and occupation order has recently been drafted by the Family Orders Projects Team. The applicant’s representatives now must attach to the ex parte order a summary of what was said in court. Practitioners will also be aware that the application fee for non-molestation orders has been removed.

Misinterpreting parental involvement

On 22 October, the presumption of parental involvement at section 11 of the Children and Families Act 2014 came into force. These provisions are unlikely to have much impact on private law proceedings.

Initially, when the proposals were consulted on by government, there was a fear from organisations and academics of the impact the presumption might have, namely diluting the paramount principle of a child’s welfare. Given that 90 per cent of cases relating to contact are settled out of court, there were concerns that parents would assume their rights or misinterpret the section, rather than settle on the best arrangements for children, which in turn could potentially cause harm. Furthermore, in the absence of legal advice, a more dominant parent may insist on an arrangement based on equality, having been influenced by misinterpretation in the media about the presumption. This has led to some believing that the presumption of parental involvement means a specific division of time.

The new subsections are unambiguous in that parental involvement does not mean shared parenting: the definition is “involvement of some kind, either direct or indirect, but not any particular division of a child’s time”. This section does not, therefore, undermine the fundamental principle that the welfare of the child is the court’s paramount consideration when determining a child’s care arrangements following parental relationship breakdown. It is doubtful that this provision will lead to major changes in the approach of the family court to child arrangements orders but it should serve to remind parties that the court starts from the position that both parents should have involvement in the child’s life.

Most people would agree that when parents separate, provided it is safe, children are more likely to thrive if they have a good quality relationship with both parents. However, the presumption does not extend to suggesting that a parent should directly spend any particular amount of time with the child. Also, if the child’s welfare dictates that a parent should not be involved in the child’s life, the presumption will not override that. The provision will not apply to proceedings commenced before 22 October.

Pre-proceedings

In Re H (A Child: Breach of Convention Rights: Damages) [2014] EWFC 38 the parents asserted that the way in which the local authority dealt with their case prior to proceedings gave rise to a breach of their rights under article 6 and article 8 of the European Convention on Human Rights. The parents sought relief in the form of declarations and damages. The local authority accepted it had breached the parents’ article 6 and article 8 rights and agreed to most of the declarations sought. However, it did not agree that the parents were entitled to damages, but that if the court found they were entitled, the appropriate amount would be £1,000 for each parent.

Both parents had learning disabilities. The local authority conducted a section 47 CA 1989 investigation following concerns, but it was evident throughout that the local authority failed to address the fact that the parents had difficulties in understanding and processing information, as well as a limited support network. The local authority then proceeded to attempt to find a placement for the child. In his judgment, His Honour Judge Bellamy mentioned there was no record:

• of the parents having been provided with an explanation of all the options available,
• or of the consequences if they did not consent to the child being cared for by the prospective carers,
• or of any discussion about how long this ‘informal’ placement might last.

Unfortunately the parents did not seek legal advice.

The local authority finally started care proceedings nearly a whole year after the child had been born. HHJ Bellamy found that the delay was unjustified and inexcusable. He pointed out that the care proceedings were not commenced promptly and that it was not until June 2014 that the parents managed to secure the return of their daughter. The judgment explains that while the parents were having regular supervised contact with their child, that it was far removed from the “joys of fulltime, unsupervised care of one’s own child”.

Concluding, HHJ Bellamy stated that the local authority’s poor practice had an inevitable adverse impact on the parents. Having looked at previous authorities, he concluded that an award of damages of £6,000 for each parent would achieve “just satisfaction” in all the circumstances of this case.

The case reminds practitioners and especially those advising local authorities that where there are concerns about a parent’s capability to care for a child, if the parent does not fully understand the implications and consequences of voluntary accommodation of the child by the local authority, it is essential that proceedings are started to ensure a lawful process if the local authority believes the child should be placed outside the family home. Where voluntary agreement is reached, those cases should remain a priority and not drift. Assessments of parents should be arranged and undertaken so that further care planning can occur. SJ

Hazel Kent is a paralegal and Noel Arnold (pictured) is director of legal practice at Coram Children's Legal Centre. Arnold also sits on the Law Society's Children Law sub-committee and the Association of Lawyers for Children's executive committee.

Follow Noel on Twitter: @Children_Law