EH v Greenwich London Borough Council and Others; Re A (children) (non-accidental injury)
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Year | 2010 |
| Date | 2010 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Non-accidental injuries – Fact-finding hearing – Parents’ youngest child sustaining fracture to left humerus – Children being placed into foster care – Judge in care proceedings concluding that injury deliberately caused by father – Judge finding mother guilty of failure to protect but highlighting positive qualities – Local authority failing to provide mother with support to separate from father – Mother claiming to have separated from father by final hearing – Local authority relying on alleged sighting of mother with father as evidence of continuing relationship – Judge making full care and placement orders – Whether judge’s analysis of evidence plainly wrong – Whether judge erring by failing to mention or have regard to welfare checklist and mother’s right to respect for private and family life – Children Act 1989, s 1(3) – Human Rights Act 1998, Sch 1, Pt I, art 8.
The parents had two children, R and RA, who were born in 2005 and 2007 respectively. In January 2008, RA sustained a fracture to her left humerus which, according to doctors, was likely to be non-accidental. Both children were accordingly removed from their parents’ care and ultimately placed with foster carers. After a fact-finding hearing in the care proceedings, the judge concluded that the father had deliberately caused RA’s injury (probably having lost his temper with her) and posed a continuing risk as a result of his propensity to violence. Although he found that the mother had failed to protect RA and had told lies in order to protect the father, the judge highlighted her positive qualities and observed that it would be very unfortunate if the children had to be permanently removed from their parents, in whose care they had previously been thriving. Following the hearing, the mother asked the local authority to arrange a meeting with her alone, anticipating that she would be advised to separate from the father. Despite that request, the authority arranged a meeting with both parents, which effectively ruled out a discussion of separation. At the meeting, the mother was told that the social workers were maintaining that the children should be removed permanently from her care, regardless of her future actions. She was provided with no support or guidance regarding her
feelings around separation and its impact upon keeping the children safe. The case was listed for final hearing on 2 February 2009 but, on 1 February, the mother filed a witness statement indicating that she had separated from the father. The case was therefore adjourned so that she could be assessed by experts, who in due course reported that they considered the separation to be genuine and that the children should be returned to her care. Although the father had ceased to have contact with the children, the local authority subsequently sought to rely on two pieces of evidence as proving an ongoing relationship between the parents: (i) a report by W, who worked at the contact centre, that she had seen the father walking some 100 yards behind the mother as she made her way to a contact visit on 5 March 2009, and (ii) the fact that the father had obtained the mother’s new mobile phone number. The experts were made aware of those allegations but considered them insufficiently serious to alter their recommendations. On the first day of the restored hearing, the local authority raised a new allegation, namely that on 18 July 2009 the parents had been seen together near social services offices by T, the local authority’s assistant team manager. The authority contended that adoption outside the family was justified since the mother had attempted to deceive everyone and could never be trusted to care for the children. The experts indicated that it would not be safe to permit the mother to care for the children if the judge were to find that she was in a continuing relationship with the father, but accepted that the quality and extent of the parents’ relationship was important. Although the mother denied contact, the judge held that it was probable that the parents had been seen together by T, CCTV evidence providing some corroboration for the sighting. On that basis, he also considered it probable that W’s identification of the parents ‘together’ was true and that the mother had given the father her new mobile number. Holding that he was ‘driven inexorably’ to the conclusion that the local authority’s suspicions of a continuing relationship were correct, he made full care and placement orders in relation to both children. The mother appealed, submitting, inter alia, that the judge (i) was plainly wrong in his analysis of the evidence and had therefore erred in his finding of fact that she remained in a continuing relationship with the father; and (ii) had erred in law by failing to explicitly mention or apply the provisions of the Children Act 1989 and art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998) in his judgment.
Held – (1) It was obvious that children should remain within their birth families unless the facts were such that they had suffered or were at risk of suffering significant harm. That meant that where positive features of a parents’ care were highlighted, it was only proper that steps be taken to foster and support the positives so that rehabilitation was given a reasonable prospect of success. In cases of the instant type, it was vital that the non-abusive parent received proper support at an early stage provided that he or she had sufficient qualities to be a good parent in the absence of the
known abuser. On the judge’s findings, the mother was such an individual. It was difficult to understand how the social workers could have reached the concluded view that she was beyond redemption given the judge’s careful analysis of her good qualities. The consequence of the local authority’s fixed preference was that it failed to actively support the mother by urging her to separate from the father and did no work with her with regard to her feelings around separation (see [14]–[16], below).
(2) The judge had been entitled to come to the clear conclusion, after hearing the evidence, that the mother had lied about the sighting on 18 July 2009. However, once he had made that finding, the judge should have gone on to consider (i) why the mother might have lied and (ii) whether the whole of the evidence was capable of proving a continuing relationship about which she had lied consistently over time. If he had undertaken that analysis, he would have realised that the only credible evidence was to the effect that the mother had been with the father on one occasion in a crowded street. The judge had been plainly wrong in stating that the parents had been ‘together’ on 5 March 2009 because that evidence had not been given; the most that could be concluded was that they had been in the same road at about the same time. It was doubtful that W’s evidence could ever be regarded as probative of a continuing relationship because it was plausible that, even if the father had been properly identified, he could have been trailing the mother without her knowledge. The judge had found that the mother had given the father her new mobile number on the basis that it followed from his finding that the mother was lying in relation to the 18 July sighting. Although it was permissible for any judge to take that route when analysing evidence, it had not been good practice to draw such an adverse conclusion in the instant case; the judge should have carefully balanced the detailed evidence before concluding that the local authority’s allegation was proven as another part of the jigsaw. Whilst the mother’s denial in relation to the 18 July 2009 sighting might have demonstrated that she could never be trusted to work honestly with professionals for the benefit of the children, there could have been other explanations and the judge should have considered them. Without support, she had not been given a fair opportunity to demonstrate that her commitment to the children was greater than her relationship with the father (see [44], [46]–[48], [50]–[55], below).
(3) The judgment contained no detailed analysis of the applicable law; the result appeared to be wholly fact-dependent because the judge accepted that, if the mother had been untruthful in her portrayal of her separation from the father, there was no realistic alternative to the making of a care order with its ultimate plan for adoption outside the birth family. The judge was making a very draconian order. In those circumstances, he was required to balance each factor within the welfare checklist in order to justify his conclusions and determine whether the final outcome was appropriate. If he had followed the terms of the 1989 Act he might have paused to consider whether, in the light of the new facts as found, adoption was the only
outcome, or whether some other result was possible. Given the mother’s qualities as a parent and the lack of support from the local authority, the judge should have considered whether some additional work could have been undertaken urgently to help her understand why she could not have contact with the father. His failure to mention the provisions of the 1989 Act and to deal with each part of s 1(3) undermined his conclusions and his orders. Furthermore, in a case where the care plan led to adoption, a full expression of the terms of art 8 of the Convention had to be explicit in the judgment; there could be no greater interference with family life. Accordingly, any judge had to show how his decision was both necessary and proportionate. The judge in the instant case had not demonstrated that he had had art 8 well in mind. Since the experts had not had an opportunity to make recommendations upon the additional evidence, which amounted to one sighting of the parents together in the street, it had...
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