concentrated black kid doing sums

Cases involving the care and welfare of children are inherently tricky. The Supreme Court in London recently considered the need for judges to show their working out in care order cases. 

Background

The anonymised judgment reads, at times, like an 11+ verbal reasoning exercise! 

The leading players are:

  • M – mother of A, B, C, D, E and F
  • F1 – father of C and D
  • F2 – father of E
  • F3 – father of F. Stepfather to C, D and E
  • A – son of M (Aged 22). “Sexually abused E in the family home”
  • B – daughter of M (Aged 19). Proposed carer for her half-sister, F
  • C – child of M and F1 (Aged 14)
  • D – child of M and F1 (Aged 11). “Intellectual difficulties”, ADHD and possible ASD
  • E – child of M and F2 (Born 2013, Aged 9). Described as “…having suffered sexual harm and exhibiting behavioural difficulties at school”
  • F – child of M and F3 (Born 2020)

As a result of A’s conduct towards E, the High Court made care orders for C, D and E. M and F3 appealed.  

Judgment

It is well established that applications for a care order have three stages:

  1. Fact-finding: what are the relevant primary facts?
  2. Threshold: has the legal threshold been crossed?
  3. Disposal: If so, what is the proper order to make?

In this case, the question was whether the judge had erred at stage 3.  

The Children Act 1989 specifies a child-centric “welfare checklist”:

  • the wishes and feelings of the child concerned
  • their physical, emotional and educational needs
  • the likely effect on the child of any change 
  • the age, sex, background etc. of the child
  • the risk of any harm
  • the capability of the parents to meet the child’s needs
  • the powers of the court under the Act

Further, any Care Order must be, in a human rights context, “proportionate and necessary” with the right to a private and family life

Dame Siobhan Keegan, delivering the judgment of the Supreme Court, commended the general approach of the hearing judge but was critical of the failure to give reasons on Disposal:

…the process adopted by the judge is flawed as it did not adequately assess the prospects of various options to mitigate the risk of sexual harm. The judge does not state why the emotional damage that each of the very different subject children would suffer… was proportionate… the judge erred in law by failing to make a proper assessment in reaching his decision.

Appeal allowed. The case has been sent back to the High Court for a rehearing.    

Comment

Always show your working out!

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