C v Solihull Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Year | 1992 |
| Court | Family Division |
WARD, J
Care proceedings – allocation by' magistrates' court to county court for hearing by Judge – issue of returning battered baby to parents exceptionally grave and important and should be transferred from magistrates' court.
Care proceedings – non-accidental injury – serious injury caused whilst child in care of parents – injury unexplained – assessment of parents – whether child should be returned to parents – court to consider wide powers available to it.
Care proceedings – order – court should make final decision only when all facts clearly known – where assessment of parents necessary interim decision required – power to make residence order subject to conditions.
The parents had two children, both girls, the elder of whom was born in March 1989 and the younger in July 1991. In March 1990, when the elder child was only 12 months old, the father slapped her across the face sufficiently hard to mark her. The mother told the health visitor and co-operated with the local authority's inquiry into the matter. The local authority regarded it as an exceptional event, noted it, but took no further action. In October 1991, when the younger child was only 3 months old, she was found to have a spinal fracture of the right femur. The medical opinions were that this was a serious non-accidental injury to a baby which would have needed considerable force to have inflicted it. The doctors rejected suggestions by the parents that the injury could have been caused by the child shifting in some way in her carrycot, or during a nappy change, or that the elder girl could have caused it. No subsequent explanation was given and the injury remained unexplained.
The local authority commenced care proceedings. An interim care order was made and after a short period with foster parents, a residence order was made in favour of the child's grandparents. At the hearing of the care proceedings in a family proceedings court, the local authority sought a care order and this was recommended by the guardian ad litem. The intention of the local authority was to carry out an assessment of the parents and thereafter consider returning the child to the parents.
The magistrates found that the child had sustained serious non-accidental injury whilst in the care of the parents. They also found that although the father co-operated with the local authority, the mother had a mistrust of social services as a result of having been taken into care when she was 15 following sexual abuse by members of her family. As a result, when the child was taken into care, the mother became unable to co-operate with social services. The magistrates further found that the local authority were inconsistent in expressing no concerns regarding the safety of the elder child who was to remain in the household with the parents
whilst contending, as did the guardian ad litem, that there was a need to protect the younger child from risks that were to be identified and assessed following an injury which was the result of an isolated incident.
The magistrates further found that there was no reason why the assessment of the parents should not take place whilst the younger child was with the parents in her home environment, and that there was no suggestion that access to see them or the children would be denied by the parents to social services. The magistrates stated that the younger child was of a tender age and she needed to maintain and increase her bonding with both of her parents. It was unclear whether the grandparents would be able to continue as foster parents. The magistrates accepted the opinion of the guardian ad litem that frequent moves would adversely affect the child and that, if the child was removed from the grandparents to foster parents, this would set back the rehabilitation process significantly which would be against the child's best interests.
The magistrates also found that there was no suggestion that the younger child was inadequately cared for as regards nourishment, clothing, or development, and that both children had never gone without.
Having regard to all the circumstances, the magistrates refused to make a care order, but made a supervision order.
The guardian ad litem appealed.
Held – allowing the appeal: (1) The magistrates had given inadequate or improper weight to a number of factors. It was wrong to equate the position of the two children. The younger girl had been the subject of an infinitely more serious injury than the elder girl. The injury to the younger girl was still wholly unexplained. Whilst it might have been an isolated event in the younger child's life, it was not an isolated event in the family's life. Further, the mother had serious underlying emotional problems. It was, therefore, plainly wrong for the magistrates to find that the local authority were acting inconsistently by having taken no action in relation to the earlier injury to the elder girl and now expressing grave concerns for the safety of the younger girl. The magistrates did not appear to have given proper weight to the importance of an assessment of the parents. The effect of their decision was to pass the responsibility for the care of the younger child to the parents. To do that before the assessment could be conducted was plainly wrong.
(2) The magistrates were entitled to find that the parents would co-operate if the child was returned to them. However, they should have made express findings as to the mother's likely co-operation if the child remained with the grandparents, or went to foster parents, or returned home; and given reasons for those crucial findings. As they had not done so, the appellate court would consider the undisputed facts and draw its own conclusions. The evidence showed that the mother was a deeply unhappy person. She was the victim of considerable horror inflicted on her in her youth, and bristled with understandable bitterness and resentment. The object of her anger was partly directed at social services. She was in need of counselling and help. This would take a considerable time. The local authority should not expect her to respond positively to their intervention during the course of a few sessions of interview to form some assessment of her future abilities to take care of the child. The only real chance of securing the mother's co-operation, which was the only way fully to advance the welfare of the children and allow this to remain a united family, was to bow to the mother's deep psychological need for an assessment to take place at the beginning, at least, upon her terms, which was with the child in her care. A relevant factor to be taken into account was the guardian ad litem's opinion as to the adverse effects of moving the younger child. The court had to balance the risk of moving the younger child from the grandparents to the parents against the risk of a further move to foster parents with the harm stated by the guardian ad litem. Also relevant was the evidence of the general standard of care provided by the parents for both children. However, the magistrates were wrong to take the risk of returning a battered baby unconditionally to the parents with no more
protection than a final supervision order, itself not made the subject of any condition. The court should consider the much wider powers available to it under the Children Act 1989.
(2) The magistrates' decision abdicated the responsibility of care to the parents at a time when matters were still too uncertain to be confident of their ability properly to exercise that care. But the making of a care order was equally open to complaint that it would involve an abdication of the court's responsibility to the local authority at a time when the court was not sufficiently in possession of all the facts to pass responsibility to the local authority. The court should make a final decision finally disposing of the case only when all of the facts were as clearly known to the court as could be hoped. That stage had not been reached in the present case as the court did not know what the result of the assessment would be. It was for the local authority to put all the material facts before the court, in this case the result of the assessment, before inviting the court to pass to them the huge responsibility of the management of a full care order. The powers under the Children Act 1989 included not only making or refusing to make a care order, but also continuing to make interim orders to await the result of the assessment. In this case it was appropriate to invoke the wide powers of the court under the Act so as to keep control of the case, make interim arrangements, and not come to a final decision until it was right to do so. The court had power to make a residence order subject to conditions and, at the same time, to make an interim supervision order subject to conditions. In this case, given (a) the importance of assessment, (b) the uncertainties of the outcome of that assessment, and (c) the importance of endeavouring to reunite the family, the proper approach was to deal with it as an interim order. This would be by way of a residence order subject to the conditions that the parents undertook a programme of assessment and co-operated with all reasonable requests by the local authority to participate in that programme of assessment; and allowing access to the home at any reasonable time and, if necessary, without notice. In addition, there would be an interim supervision order with conditions including medical examinations of the child.
(4) Delay was ordinarily inimical to the welfare of the child, but a planned and purposeful delay might well be justified. A delay of a final decision for the purpose of an assessment was proper delay and was to be encouraged. It was wholly inconsistent with the welfare of the child to allow a matter of months to elapse for a proper programme of assessment to be undertaken.
(5) By s 38(4) and (5) of the Act an interim order...
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