Oldham Metropolitan Borough Council v E
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE HIRST |
| Judgment Date | 09 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0309-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No.93/1845/F |
| Date | 09 March 1994 |
[1994] EWCA Civ J0309-1
In the Supreme Court of Judicature
Court of Appeal (Civil Division)
On Appeal from: Manchester County Court
From: His Honour Judge Fawcus
The Vice-Chancellor
(Sir Donald Nicholls)
Lord Justice Hirst
and
Lord Justice Waite
MISS L. KUSHNER QC and MISS J. CHEETHAM (MR. N. CHAPMAN on 9/3/94) (instructed by Messrs. Hills, 18/20 Yorkshire Street, Oldham) appeared on behalf of the Appellant.
MR. J. TOWNEND QC and MR. B. WALLWORK (MS J. GRICE on 9/3/94) (instructed by the Legal Services Department, Oldham, Metropolitan Borough Council, West Street, Oldham) appeared on behalf of the 1st Respondent.
MISS D. EAGLESTONE (instructed by Messrs. Hinchcliffes, 11 Church Terrance, Oldham) appeared on behalf of the 2nd Respondent.
MR. L. NEWTON (MR. T. SCOTT 9/3/94) (instructed by Messrs. Gibsons, 74-78 Rochdale Road, Royton, Oldham) appeared as Guardian ad Litem.
The subject of this appeal is a baby boy aged 14 months, to whom I shall refer as “A”. His mother suffers from disabilities which make it impossible for her to care for him herself and which led the Local Authority to initiate care proceedings soon after A's birth. Interim orders were obtained authorising the child's temporary placement in the short term foster care where he lives at present. The mother loves her child, however, and wishes to remain in contact with him. She has an Aunt aged 37, who is a mother of three children of whom the youngest is aged three. The Aunt is willing to take over the care of A and bring him up with his cousins as part of her family. The Local Authority, having assessed the Aunt's potential to provide suitable alternative care for A, took the view that the child's long term welfare would be better served by adoption. Two applications therefore came into being. One was a public law application by the Local Authority for a care order and an order terminating the mother's access; the other was a private law application by the Aunt for a residence order, which the mother supported. The judge heard both applications together, granted the Local Authority's application and dismissed that of the Aunt. On the Aunt's appeal to this court we allowed the appeal and directed a re-hearing. In this judgment I set out my reasons for supporting that decision.
It is sufficient to say of the mother's difficulties that her attempted care of A after his birth on 6th January confirmed the fears already felt by health and social work authorities beforehand that the mental and developmental problems from which she sadly suffers would render her unable to cope. She could give her baby neither safe handling nor adequate supervision. Care proceedings were started by the Local Authority, which placed A with a temporary foster mother (where he remains at present) on 19th March 1993 under the authority of a series of interim care orders. In April 1993 the Local Authority began a comprehensive assessment of the Aunt (hereafter called “Mrs C”) in accordance with the published DSS guidelines known as the “Orange Book”.
The outcome of that assessment was succinctly summarised by the judge, in the course of his admirably full and careful reserved reasons, in these terms:-
“The [mother's extended] family is large and closely-knit and Mrs C is described as being either at the centre or as the hub of the family. She lives with and looks after their 72 year old mother, together with her three children aged 15, 13 and 3. She is a divorced lady, 36 years old and in good health …………… She is in regular contact with her brothers (save for D, who was turned out of her house a few years ago following a complaint by her now 15 year old daughter of sexual abuse at his hands) and her sisters…………… It is not insignificant that out of this large extended family only Mrs C has been suggested or has come forward as a potential carer for A.
Whilst expressing the greatest possible admiration for everything Mrs C achieves within her family, an admiration which I share, it is the view of the Local Authority, expressed through the evidence of Margaret Ramsden ……. that Mrs C would be biting off more than she can chew in taking on A on top of everything else, particularly in the context of having to cope with what would undoubtedly be the regular attendance at her house of A's mother, who, whatever defects she may have as a mother, undoubtedly loves A very much and, perhaps more importantly, probably still thinks she is capable of looking after A, despite having withdrawn her own application in respect of him.
The particular factors which they identify in reaching that conclusion are:-
(1) that she is already caring for three children.
(2) that she has had problems of an emotional nature to deal with in relation to her elder daughter arising out of sexual abuse not only from [the brother D], referred to above, but also, following that, from a 32 year old neighbour.
(3) that although she behaved entirely appropriately on each occasion upon learning of her daughter's allegations she was, nevertheless, quite unaware of any problems before they arose, thus giving rise to potential protection issues
(4) that she is a single parent
(5) that she has to care for a mother who is sufficiently disabled to warrant claiming disablement benefit and a mobility and attendance allowance
(6) that she would have practical difficulties in ensuring A's safety at times when his mother was present for contact.
They emphasise that no single one of these factors would be sufficient by itself to justify their conclusion: It is a combination of all of them, taken together with the present very evident distress shown by A when handled by his mother during contact sessions, which handling, they feel, would be bound to occur when mother visits her aunt, even though supervised.”
That Assessment was concluded in May 1993. It was challenged by Mrs C who issued an application for a residence order. The Local Authority, which had decided by then that A ought to be placed for adoption outside the family, applied for a final care order and an order terminating the mother's rights of contact, which was resisted by the mother, who supported Mrs C's residence order application.
Both sets of proceedings came on together before Judge Fawcus in the Manchester County Court on 13th October 1993. The Guardian ad litem appointed in the care proceedings supported the Local Authority's proposals for adoption. A is illegitimate and his natural father has played no part in his life. The mother is therefore the only person with “parental responsibility” for him as defined by S 3 of the Children Act 1989. It was agreed by all parties that if A were to be placed in her care, he would be suffering, or likely to suffer, significant harm. It was not supposed by anybody (in the light of the case law which then existed) that regard could be had, when considering the risk (or potential risk) of significant harm to A, to the availability of Mrs C as an alternative carer. The case accordingly proceeded by common consent as one in which the “threshold” criteria under S 31 (2) of the Act were satisfied. This meant that it was accepted by everyone that (to paraphrase the Section) A is suffering or is likely to suffer significant harm, and that the harm is attributable to the care given to A not being what it would be reasonable to expect a parent to give to him.
On that basis the judge was entitled (as he did) to express himself as satisfied that the threshold criteria were indeed established and to treat the case as one which gave rise to a choice between the alternatives of adoption by strangers on the one hand (which would extinguish A's links with his natural family) and a placement with Mrs C on the other hand (which would preserve his links with the natural family including a degree of contact with the mother). The hearing lasted two days. At the end of the second day (14th October) the judge announced his decision in favour of adoption (with the procedural consequence that Mrs C's residence order application was dismissed and the local authority's application for care and termination of contact orders was granted). The judge reserved his reasons for that decision, which he handed down on 21st October 1993.
It so happened (although no one was - or could have been - aware of it at the time) that during this short interval the Court of Appeal gave judgment on 15th October in the case of Re M (A Minor) (Care Order: Significant Harm). That case (which has since been reported in 1994 1 FLR 73) concerned a four month old baby whose father had murdered the baby's mother and was sentenced to life imprisonment. Fortunately a cousin of the mother was able to take over the care of the baby's older siblings, but she felt she could not take on the baby as well. The Local Authority accordingly started care proceedings and arranged an interim foster placement for the baby. Before the hearing for a final care order there was a change in the circumstances. The older children had settled in well with the cousin, who now felt that she could, after all, provide a home for the baby. The Local Authority approved that proposal. They indicated that they no longer wished to pursue their care order application, and supported the cousin's application for a residence order. The Guardian ad Litem, however, was opposed to any discontinuance of the care proceedings. With the support of the baby's father (in custody) the Guardian favoured adoption outside the family, and wished the care proceedings to be kept in being for that purpose. The judge held that, notwithstanding the availability by the date of the hearing of an alternative carer in the form of the cousin, the child was presently suffering from significant harm because of...
To continue reading
Request your trial
-
Re M (A Minor) (Care Orders: Threshold Conditions)
... ... recently been considered by the Judicial Committee of the Privy Council. In Yip Chui Cheung v. The Queen (16 June 1994) the appellant was ... ...
-
Re B (A Child) (Care Order: Proportionality: Criterion for Review)
...Cases referred to in judgmentsA (A Minor) (Care Order: Significant Harm), Re[1994] 2 FCR 125, sub nom Oldham Metropolitan BC v E [1994] 1 FLR 568, Assicurazioni Generali SpA v Arab Insurance Group (BSC)[2002] EWCA Civ 1642, [2003] 1 All ER (Comm) 140, [2003] 1 WLR 577. Aune v Norway App no ......
-
B (A Child)
... ... The applicants for the care order are the London Borough of Barnet, where the parents were living when Amelia was born. Since then ... In 2004 Mr E complained to the General Medical Council that the family GP had sexually assaulted one of the half-brothers, then ... ...
-
B (A Child)
...had to be considered in context, including the cultural, social and religious circumstances of the particular child and family (see e.g. Oldham v E [1994] 1 FLR 568 and Re K; A Local Authority v N and others [2007] 1 FLR 399). Only when children are put at unacceptable risk should there be......