(Court of Appeal, McFarlane, Underhill LJJ, Dame Janet Smith, 11 November 2015)
Public law children – Adoption – Decision to rehabilitate child to father’s care – Understanding of decision of Court of Appeal – Whether an erroneous understanding had influenced the welfare decisionThe appeal brought by the prospective adopters of the 3-year-old child in respect of a decision to rehabilitate the child to the father’s care was allowed and the case was remitted for rehearing before a different judge.
The now 3-year-old child had been subject to local authority involvement throughout her life due to her mother's mental health difficulties which rendered her unable to look after any of her four children. The three older siblings were cared for by the father but shortly after the youngest child returned home from the hospital she was removed under an interim care order due to concerns for the significant amount of pressure the father was under.
She had now lived with prospective adopters for 15 months and had last seen her father when she was under a year old. When an application for an adoption order was made, supported by the local authority and the guardian, the father sought permission to oppose the application under s 47 of the Adoption and Children Act 2002. The father's application was refused but his appeal was successful and the contested adoption was set down for determination. In addition, the father's appeal from a decision refusing his appeal from the original care and placement orders was successful and the issue was remitted for rehearing.
During the hearing the opinions of some of the professionals including the guardian changed and supported reunification of the child with the father. The judge determined that the child should be returned to the father's care and she was made a ward of court while interim arrangements were put in place. The prospective adopters appealed.
The appeal was allowed. The case would be remitted for rehearing before a different judge. It could be seen from the transcript of the proceedings before Russell J that she had made a number of unhelpful interventions which might have given an indication that she had predetermined the matter at an early stage which was particularly concerning in such a finely balanced case.
It was clear that the judge was wrong in her analysis of the Court of Appeal decision, which did no more than set aside the district judge's orders on the basis that he had failed to undertake any acceptable analysis. The court did not hold that the district judge's welfare decision was wrong or engage in any analysis of what, if any, orders would or should have been made. That erroneous understanding had an impact upon her conduct of the hearing, of the experts' understanding and upon the ultimate evaluation of the child's future welfare. That ultimate decision was unreliable.
Case No: B4/2015/2384Neutral Citation Number:  EWCA Civ 1284IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISIONMs Justice RussellSD14C00594Royal Courts of JusticeStrandLondonWC2A 2LLDate: 11/12/2015
LORD JUSTICE MCFARLANE
LORD JUSTICE UNDERHILL
DAME JANET SMITH
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Re: H (A child)
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Mr James Turner QC and Miss Madeleine Reardon (instructed by Osbornes Solicitors) for the Appellants
Mr Andrew Bagchi QC and Mr Martin Downs (instructed by Brighton and Hove City Council Legal Services) for the First Respondent
Miss Janet Bazley QC and Mr Chris Barnes (instructed by Harney and Wells Solicitors) for the Second Respondent
Miss Catherine Jenkins (instructed by Wannops Solicitors) for the Third Respondent
Mr Jonathan Bennett (instructed by Railton Solicitors) for the Fourth Respondent
Hearing date : 22 October 2015
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