December 2013 Case Law Update

PUBLIC LAW

 

Re L (Leave to Oppose Making of Adoption Order) [2013] EWCA Civ 1481

 

Appeal by Mother against refusal of leave to oppose adoption order pursuant to s.47(5) Adoption and Children Act 2002. Final care and placement order were made in respect of child S and she was placed with prospective adopters, Mr and Mrs X. By the time they made their application for an adoption order, they had separated and only Mr X pursued the application. At the time, Mr X was in dispute with Mrs X over residence of another adoptive child and was expecting a biological child with his new partner. The judge at first instance accepted that Mother satisfied the requirement to show a change in circumstances as she had clearly taken steps to address the concerning aspects of her life however, concluded that Mother’s prospects of successfully opposing the adoption application did not have ‘substance’ and ‘solidity’ (as was required following the decision in Re B-S.) Black LJ giving the leading judgment Re B-S applied, Appeal allowed; in considering Mother’s prospects of success, the judge had failed to take into account the instability in the X family.

 

Re D (Leave to Oppose Making of Adoption Order) [2013] EWCA Civ 1480-1

 

Appeal by Mother against refusal of leave to oppose adoption order pursuant to s.47(5) Adoption and Children Act 2002 in respect of child L. The judge at first instance accepted that there had been a relevant change in circumstances in that Mother had made some improvements but concluded that it would be “highly improbable that a court could say that the position was sufficiently different …. to enable M to succeed in opposing an adoption application”. He also considered L’s circumstances and the adoption proceedings were “well advanced”. He also noted the delay that would result if M were to be granted leave. Black LJ giving the leading judgment Re B-S applied, Appeal dismissed; the judge had applied the appropriate test and further, it was entirely appropriate for the judge to consider L’s circumstances and those of the prospective adopters.

 

Re E (Adoption Order: Proportionality of Outcome to Circumstances) [2013] EWCA (29 October 2013)

 

Appeal by Mother against the making of a final care and placement order in respect of one of her children. Mother had 2 older children by her husband and a baby with her new partner (as a result of an extra marital affair concealed from her husband for some months). The youngest child suffered non accidental injuries which the court determined were caused by Mother’s partner. Her husband secured residence of the older two children and the court granted care and placement orders with respect to the baby, which Mother appealed. Re B-S applied, Appeal allowed; the placement order was set aside and care order was replaced with an interim care order. 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.

 

X Local Authority v Trimega Laboratories & Ors [2013] EWCC 6 (Fam)

 

Application for wasted costs orders against Trimega Labs arising from an error made in a report after a blood alcohol testing in care proceedings.

 

PRIVATE LAW

 

C (A Child) & Anor v KH [2013] EWCA Civ 1412

 

Appeal by Father against an order prohibiting him from removing his son from Mother or from his primary school and for indirect contact only. At various points in the proceedings, both parties were litigants in person. Per Ryder LJ, giving the lead judgment of the Court of Appeal, “[T]he case presents a salutary lesson to us all to put in place procedures and practices which can accommodate litigants in person who do not know the rules and practice directions of the court.” Appeal allowed on the basis of a number of procedural irregularities which caused the decision to be unjust and wrong, including: – the family court advisor filed a report which detailed allegations of fact by Mother against Father which read as if the allegations were true and there was no doubt that the family court advisor believed them to be true. It was not highlighted that the facts had not been established by way of a fact finding. – the assumption of alleged facts against Father when no fact finding exercise had been conducted resulted in the judge’s welfare evaluation being based on a false premise The matter was transferred for re-hearing before a different judge with the child being made a party and represented by a guardian appointed by NYAS.

 

CLAIRE HOWELL

Barrister

No5 Chambers