Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
(Court of Appeal, Laws, McFarlane and Gloster LJJ, 29 Oct 2013)
The Bangladeshi parents moved to England with their two children but shortly after the mother formed a relationship with a man living at another flat in the property in which they lived. As a result the mother gave birth to a third child without the husband knowing he was not the father. The mother's partner occasionally cared for the children. At 7 months, the youngest child, was admitted to hospital with acute subdural haematoma, retinal haemorrhage and encephalopathy.
The local authority commenced care proceedings and the youngest child was taken into foster care. The husband learnt of the youngest child's paternity, causing the mother to move to live with her partner, taking one of the children with her while the other remained with the husband who sought residence orders in respect of both children.
A fact-finding hearing concluded that the youngest child had been assaulted by violent shaking by the mother's partner. Findings were also made regarding his history of violence towards adults but no findings were made against the mother. She had no knowledge of the abuse although she understood that the partner had an intolerance of small children, she did not know what he was likely to do and so had not failed to protect her children.
Following the hearing the mother remained living with her partner because she had overstayed her visa and had no other choice. The father was granted residence orders and the mother was permitted staying contact as long as the children did not have contact with her partner. The local authority sought care and placement for adoption orders for the youngest child which the mother opposed.
The judge, dispensing with the mother's consent under s 52 of the Adoption and Children Act 2002, granted final care and placement orders. The mother appealed.
The appeal was allowed. The placement order was set aside and care order was replaced with an interim care order. In the circumstances of this case the decision to grant a placement order had not been proportionate given that the only aspect of the mother's parenting which caused concern was her relationship. The judge had failed to make reference to the welfare checklist and to the test for dispensing with a parent's consent. A court could not authorise adoption unless nothing else would do. The mother had been trusted to protect her older children from her partner during contact and the local authority had failed to provide assistance to the mother in keeping her children safe from her partner, or if necessary, to separate from him. It was part of the proportionality assessment to assess how the local authority could help keep a family together.