A three year-old girl should not be returned to her father, the Court of Appeal has ruled, until the case for her adoption has been reheard.
Re H (A Child) concerned ‘W’, who born in November 2012 and whose welfare has been a matter of concern to the authorities for most of the time since. A care order was made shortly after her birth and the resulting proceedings continued in various forms right through until May this year, when a full welfare hearing came before Ms Justice Russell. The toddler had been living with foster parents for more than a year by that point and the Judge was called on to decide whether she should be returned to her father and three siblings or adopted by the foster family.
In the Court of Appeal, Lord Justice McFarlane described the case as having “a complicated, protracted and unattractive procedural history”.
W’s mother had major problems with her mental health which mean she was unable to look after any of her children, who are instead looked after by their father. The initial care order was made after social workers became concerned that the father was under “significant pressure” and the new baby had “compromised his ability to care for all four children”.
W then lived with foster carers until a hearing the following year, when the father was allowed to continue looking after the three older children under supervision from social workers. However W should not be returned to her father, the court ruled, but left with the same foster carers. The local authority was given permission to place the toddler for adoption. A couple applied to adopt the girl, who was then 14 months old.
W’s father opposed the application, under section 47 of the Adoption and Children Act 2002. This states that biological parents must consent to an adoption in most instances. Following a series of hearings, the father was eventually granted permission to oppose the adoption. His appeal was successful and the adoption order made in September 2013 was sent back to the family courts for a rehearing.
Then in July this year, Ms Justice Russell ruled that W should in fact be returned to the father she had not seen since before her first birthday. She refused permission to appeal the ruling or a ‘stay’ (delay) in W’s return. However, both of these were later granted to the prospective adopters by Lord Justice McFarlane.
In the Court of Appeal, the couple argued that the couple had not been given a fair hearing because Ms Justice Russell had indicated her views at an early stage in the hearing. She had also not properly considered the impact on W of being returned to her father and the “rupture” of her attachment to them, they claimed, or their rights under Article 8 of the European Convention on Human Rights.
In a lengthy judgement Lord Justice McFarlane analysed the complexities of the case. He concluded, in forthright terms:
“I have regarded this task as being a particularly anxious one; that this is so is reflected in the length of this judgment …This is by no means a straightforward appeal. In addition to each of the issues that I have referred to thus far, I am acutely conscious that achieving finality, whatever the outcome in terms of W’s placement, is likely to be of benefit to W as a factor in its own right. I have had at the forefront of my thinking the view that this child, who came into the system at the age of one month, has not been well served by the procedural history of this case to date and that to compound that situation by allowing the appeal with the consequent need for yet another hearing may be seen as little short of a disaster.”
Nevertheless, His Lordship identified significant problems with Ms Justice Russell’s ruling an concluded that the appeal had to be allowed and the case reheard.
“…with a heavy heart when contemplating the consequences in terms of yet further hearings, I am driven to the conclusion that both the hearing itself and parts of the judge’s analysis were flawed to such an extent that the outcome cannot safely be relied upon.”
The barrister James Turner QC represented the couple in the Court of Appeal.
Read the full judgement here.