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, Lloyd, Black, McFarlane LJJ, 30 July 2013)
When the mother and father separated the child was made subject to a child protection plan due to concerns of the standard of care she was receiving, domestic violence incidents between the parents she had witnessed and the father's aggressive attitude with professionals.
The mother moved to a different part of the country and commenced a new relationship with a man who inflicted non-accidental injuries on the child and raped her. Care and placement orders were granted. The father who had maintained contact with the child appealed.
The appeal was allowed and the case was remitted to a different judge. The judge had been wrong to make care and placement orders and had failed to carry out a proper balancing exercise in order to determine whether it was necessary to grant the orders.
There needed to be active thought from the outset about the factual and evidential basis of a local authority's case. The President of the Family Division had emphasised the need rigorously to avoid all unnecessary detail in social work chronologies and statements and the threshold statement. There was a need to distinguish between fact and what fell into what might loosely be called the processing of those facts. The assessments and opinions of social workers and other professionals would only be valid if the facts on which they proceeded were properly identified. The way to proceed would depend very much on the circumstances of each case. The threshold statement would sometimes sufficiently convey the factual basis on which the court would determine whether the Children Act 1989, s 31(2) was satisfied and what order was to follow. Where a parent did not accept what was asserted, the local authority would have to produce evidence to establish the allegations.
The judge had failed to give sufficient weight to the fact that the father had been having unsupervised contact with the child for 3 days per week with the local authority's approval. In addition the father's apparent aggressive approach had to be viewed in the context of what had happened to the child despite his requests that the local authority should check up on her.