Public Law
November 2023

The Court of Appeal rejected a mother’s appeal against the dismissal of her application to discharge placement orders. The Court of Appeal provided useful guidance as to the revocation of placement orders.

Background

A mother of two brought an appeal against the dismissal of her application to discharge placement orders and her application for the instruction of an independent social worker. The appeal was supported by the children’s father but opposed by the local authority and the Children’s Guardian.

That was a substantial hearing before a deputy judge, which resulted in the removal of the children, then aged 4 and 3, from the mother's care. The deputy judge found that the father had repeatedly assaulted the mother but that she had lied about it or retracted complaints and had failed to separate from him or protect the children from being exposed to such incidents. Neither parent had engaged with the child protection plans or the work and support offered.

In December 2021, placement orders were made and farewell contact with the mother took place in March 2022. Prospective adopters were identified and introductions began.

In March 2023, the mother applied for leave to apply to revoke the placement orders, which were granted on 11 May. With the court's approval, fortnightly meetings between the prospective adopters and the children continued.

In September 2023 the court concluded that it would not be in the children’s best interests to revoke the placement orders. The court held that despite the mother’s considerable efforts, she could not meet the needs of children who now need skilled parenting.

Grounds of Appeal

In October 2023, permission to appeal was granted. Lord Justice Peter Jackson set out the mother’s grounds of appeal as follows:

1. The Judge was wrong in law to determine that there is a difference between the quality of the local authority evidence required to support an application for care and placement orders and the quality of the evidence required to resist an application to revoke a placement order once leave has been granted. The Judge should have applied the same 'proper evidence' test.

2. The Judge was wrong to conclude that the deficits in the local authority evidence could be corrected by the social worker's oral evidence and that there were no gaps in the assessment evidence.

3. The Judge was wrong to accept the Guardian's conclusions when her analysis was flawed and/or based on the flawed assessment of the local authority.

4. The Judge was wrong not to adjourn the proceedings for a fair and proper assessment to be obtained. Such evidence was necessary for the just and fair determination of the proceedings.

The Court of Appeal dismissed the mother’s application. The court acknowledged the process the mother had made since the children were removed from her care 2½ years ago, However, time has not stood still for them either and they now urgently require a permanent home. The mother accepted that she could not provide that as matters stood.”

The court provided useful guidance as to revocation of placement orders.

The court provided guidance as to revocation of placement orders

Section 24(1) Adoption and Children Act 2002 sets out the law for revoking a placement order.

To revoke a placement order, a person must demonstrate that there has been a change of circumstances since the making of the placement order and that it would be in the child’s interests for the application to be heard.

The legal burden of proof will rest with the applicant, to show to the civil standard that it is not in the interests of the child to maintain the placement order. Once permission to apply is granted, the court must carry out an impartial review of whether a placement order continues to be in the interests of the child.

The relevant principles to apply are as set out in Re C (Children) (placement order: revocation) [2020] EWCA Civ 1598 at paras 17-21. Revocation must be in the children’s best interests.

The party seeking a factual finding will bear the burden of proving it, again to the civil standard. So, it will typically be for an applicant parent to show how much their situation has changed since the placement order was made, and for opposing respondents to make good their case about what a change of plan would mean for the children.

An appeal by the father against interim care orders made in respect of three children. The appeal was successful.

Background

The family had been known to social services for many years. The family was referred to social services because of concerns about domestic abuse between the parents and the children’s exposure to drugs. In 2019, the parents separated and the children remained with the mother but had regular contact with the father.

In January 2022, the mother was arrested for drink-driving and it was discovered she had left the children alone overnight. As a result, she was charged with several offences, including child neglect. The children were placed with the father but returned to the mother after a few weeks.

In November 2022, care proceedings were issued; initially, the children remained at home with their mother under interim supervision orders. Various assessments were ordered. A parenting assessment of the mother was incomplete due to her limited engagement. A parenting assessment of the father concluded that, with support, he had the capacity to meet the long-term needs of all three children.

Following a referral from the ambulance service, in May 2023 an order was made providing that the children should live with the father until the next hearing or further order. The order provided for the mother to have contact with the children with the intention of this progressing.

Following contact with the mother, she made allegations that the father was ill-treating and physically abusing the children. The father disputed the allegations and the children did not corroborate the allegations. The social worker concluded there were no safeguarding concerns about the placement.

The Local authority made a C2 application inviting the court to intervene and determine the mother's contact arrangements. However, it became apparent that the father had allowed the children to stay with the mother overnight without the permission of the local authority. Following reports of a further occasion, the local authority amended their care plan and now proposed that the children be placed in foster care under interim care orders.

At a contested hearing in July 2023, the court granted the local authority’s application for interim care orders. Permission to appeal was granted.

Court of Appeal discussion

The principles of whether to authorise the interim removal of a child are summarised in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 in paragraph 2:

"(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.

(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.

(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower ('reasonable grounds') threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.

(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child's physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.

(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation."

The authority of Re C was identified in the case summary prepared by the local authority but this was not mentioned in the judgment. The judge referred to "the immediate risk of serious harm" which, the Court made clear in Re L-A (Children) [2009] EWCA Civ 822, is not the test. The Court of Appeal noted that it was unlikely that the judge was unaware of the test to be applied, the question was whether he applied it.

The Court of Appeal concluded that the judge at first instance had failed to apply the test for immediate removal and that, had he done so, he would have reached the opposite conclusion.

The Court of Appeal set out 3 reasons for interfering with the judgment at first instance.

The judge failed to take into consideration the positive evidence of the quality of care being provided by the father.

The judge did not consider the risk of emotional harm if the children were removed.

The judge was required to scrutinise the available resources that might remove the need for separation.

The court concluded that the appeal should be allowed, the interim care order set aside and the children returned to the care of the father.

The judge had also fell into error by refusing to allow a short stay of the order to enable the father to appeal.

The Court of Appeal noted the principle considered in Re N (Children: Interim Order/Stay) [2020] EWCA Civ 1070 at paragraphs 36 to 38 and reminded courts and practitioners to follow the court guidance in Re N. Unless the child's safety and welfare require their immediate removal the court should always allow an unsuccessful party the opportunity to apply to the appellate court.

‘Even if the judge's view as to the risks to the children remaining at home was correct (which in my judgment it was not), they could never be described as so acute as to justify denying the father a short stay to apply to this Court. By the time the application for permission to appeal was considered by Moylan LJ, the children had been in foster care for several weeks and it would clearly have been wrong at that stage to return them to their father pending determination of the appeal. The consequence is that, by the date of the appeal hearing, the children had been away from their father for over ten weeks’.

Permission was granted to the Local authority to change the forename of a child who was subject to an interim care order contingent on the final care plan of the child.

Background

The local authority sought permission to change the forename of a child who was subject to an interim care order.

The mother had registered the child with the forename ‘Mia’. The local authority submitted that:

“Mia … is likely to suffer significant emotional harm, as a result of him having been given a name that is predominantly considered to be a female name when he is male. It is submitted on behalf of the local authority that such a name may attract ridicule or teasing and by consequence is capable of harming his self-esteem as he grows up.”

The Local Authority sought the court’s permission to change C’s forename to ‘T2’, which was the forename given to him by the mother for a few weeks following his birth. The name is ordinarily associated with someone who is male.

The local authority sought leave under s.100 of the CA 1989. Section 100(4)(b) provides that the court can only grant leave for an application to be made if the court is satisfied that there is no other statutory route to an outcome, and there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child, he is likely to suffer significant harm”.

When will the court intervene under the inherent jurisdiction in respect of a forename change to a child in care?

The court summarised the case law as follows:

1. Only in a “most extreme” case should the court exercise its power to prevent a parent from registering a child with the name chosen by that parent. (Re C [2016] EWCA Civ 374 at [3]).
2. The issue of whether there is a power within the inherent jurisdiction to prevent a parent with parental responsibility from naming their child with a particular name is dependent on whether the court is satisfied that to allow such a name to be used would likely cause that child significant harm (Re C at [108-109]);
3. Although “it will only rarely be the case”, nonetheless “the giving of a particular name to a child [i.e., like ‘Cyanide’ in Re C for instance] can give a court reasonable cause to believe that, absent its intervention, the child in question is likely to suffer significant emotional harm” (Re C at [102]);
4. The changing of a name (surname or forename) is a matter of importance, and in determining whether a change should take place the court must have regard to the welfare of the child;
5. Registration of a particular name is always a relevant and an important consideration, but it is not in itself decisive;
6. The principles to be applied to change of name cases are the same regardless of whether a proposed name change relates to a forename or a surname as emphasised in Re D, L and LA (Care: Change of Forename) [2003] 1 FLR 339;
7. Forenames hold the same importance as surnames and the same principles should apply in considering and resolving any issue relating to a forename and surname;
8. The attitude and views of the individual parents and/or proposed carers are only relevant as far as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child (Dawson v Wearmouth [1999] 1 FLR 1167);
9. “The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her religious or cultural background, can be a source of great pride to a child and give him or her an important sense of 'belonging' which will be invaluable throughout his or her life.” (Re C at [40]);
10. It would be “a significant interference in the ECHR, Art 8 rights – a right to private and family life to prevent them from giving the child the name of their choice” (Re C at [21]).

The court concluded that the mother’s choice of forename, Mia was not sufficiently “unusual, bizarre, extreme or … foolish” as to justify court intervention. The court echoed Re C, noting that ‘taste and perception can change; a name which is considered by a child to be an embarrassment at one age on account of it being different or unusual may well, as they get older and begin to assert their individuality, become a badge of pride for those very same reasons’.

However, the court was persuaded that if the order was not made, then there is reasonable cause to believe that C would be exposed to harmful intra-family conflict and confusion over the next few years such as to cause him to suffer significant harm.

Contingent upon

The order is contingent upon the ultimate outcome of the Local Authority’s application for a care order. If the care plan for C is approved by the court, and a care order is made on that basis with C moving to live with the paternal grandmother and father, the Local Authority’s application for a change of forename succeeds.

If the care plan for placement with the paternal grandmother and father is not approved at the final hearing and C is not to be placed within his paternal family, then there is no proper basis for the court’s intervention. The reasoning set out by the court would not apply to the same extent or at all to a different placement. In those circumstances, the Local Authority would not have leave to change C’s forename.