Supreme Court rules in two care cases

Family Law|News|February 20th 2013

The Supreme Court has issued rulings in two separate care cases, unanimously allowing one appeal and dismissing the second.

In the matter of L and B (Children) was an appeal centred around the right of a judge to change their mind in relation to a ruling. It concerned a case in which a fact-finding hearing was hold to determine the whether or not it was possible to identity either member of a couple as the sole perpetrator of serious injuries suffered by their child. In December 2011, Judge Penna, the original case judge, gave a spoken judgement ruling that the father was responsible for the injuries. However, two months later, she produced a written judgement in which she announced that she had “reconsidered the matter carefully”. As a result the judge had concluded that “to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard”. As a  result, she ruled, the mother could not ruled out as a perpetrator of the abuse.

The mother appealed this revised ruling and was initially successful at the Court of Appeal, which ruled that the judge had not been free to change her mind in the way she had done as she had lost her mandate to make further judgements after the initial spoken ruling in December 2011. It was later discovered, however, that a formal legal order recording the judgement had not been ‘sealed’ (completed) until 28 February 2012, after the judge’s revised ruling.

The Court of Appeal quashed the revised judgement and ordered that the original ruling should stand. The father appealed this ruling, with help from the local authority, the children’s legal guardian and members of his family.

The Supreme Court unanimously ruled in his favour. Supreme Court Justice Lady Hale said the original judge had been free to change her mind as the legal order had not been formally ‘perfected’ (completed).

In the matter of J (Children) was the second care case. This concerned the legal status of a previous finding that one or both of a couple were responsible for causing serious injuries to a child which subsequently died.

When the couple had a second child, the local authority started proceedings have the child taken into care. During these proceedings, the two parents were listed as possible perpetrators of the injuries to the first child, although there was no definitive evidence.

Later the couple separated and the woman travelled to the north of England where she set up home with a new partner and his two children. While living there, she had another child with her original partner.

The local authority in her new home eventually became aware of the earlier findings and ordered that the woman leave the household, also applying for care orders  in relation to her child, as well as her new partner’s two children.

In the original court proceedings, the care applications were dismissed, as there was no solid proof, according to the judge, that the woman had been responsible for the injuries which caused the original child’s death. There was also, the court ruled, no clear legal ruling that findings of fact which did not identify a specific perpetrator had to be ignored when trying to decide the possibility of future harm to other children.

An initial appeal was unsuccessful, so the local authority appealed to the Supreme Court, but this also failed. In her Supreme Court judgement, Lady Hale declared:

“….it would be most unfair to the whole family, not only to this mother, but also to her husband and all the children, for these proceedings  to continue further. If the  local authority wish to make a case that any of these children is likely to suffer significant harm in the future, they will have to bring new proceedings. The current application must remain dismissed.”

 Image by Chris Potter via Flickr under a Creative Commons licence

 

Author: Stowe Family Law

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