A family judge had been told to expand on his reasons for ruling that a toddler could not be cared for by his father.
The case concerned ‘H’, an infant born in October 2014. At the time, the parents were living together but the relationship quickly broke down and H was taken into care under an emergency placement order, after which the parents separated. The child has remained with foster carers ever since.
In the Court of Appeal, Lady Justice Black explained the background to H’s removal into care:
“The child’s mother has considerable problems. …[She] it seems had misused drugs and alcohol and suffers also from mental health difficulties. It seems she was violent to the father.”
H was her second child but she was not caring for the first either. An assessment by social workers led to her being ruled out as a carer for H and she made no attempt to appeal this. The mother did, however, state that she would prefer the infant to be adopted rather than placed with the father or his family.
He, by contrast, wanted to look after the child himself. A Nigerian national, the man had originally come to the UK in 2003 on a six month tourist visa and stayed on illegally. He has since been granted discretionary leave to remain, according to a letter from his local authority. If the court would not allow him to take on care of H, however, the father argued that his brother and sister-in-law back in Nigeria should do so instead.
In June last year, His Honour Judge Tolson made care and placement orders for H.
In her later ruling, Lady Justice Black explained why Judge Tolson had felt unable to agree to the father’s request. After noting his intelligence, the fact that the mother had been the instigator of domestic violence towards him, and his record of “warm interactions” with the child, he had then turned to the problems with the father’s application.
“He considered that the father’s life “appears to be coming off the rails.” The judge enumerated various difficulties that the father faced. He was at that time here illegally; he had no job; he had no home and he had been living rough on the streets at times; he was isolated and he had problems with cannabis misuse which had led to him losing the chance to live with the mother’s parents with a with a view to that assisting with him looking after H.”
Also considered a negative factor was the fact that the father had formed a relationship with the mother in the first place, as she “was obviously a very vulnerable woman”, as well as his involvement with another woman at the time.
Unhappy with this decision, the father applied for permission to appeal, arguing that Judge Tolson’s “relatively brief extempore judgement” had failed to properly consider the possibility of care by the child’s uncle and aunt in Nigeria. In addition, it had not, he claimed fully or fairly considered whether there was really no viable alternative to the adoption of H, as required by law.
In response to these arguments, Lady Justice Black concluded that the most appropriate course of action at that stage was to ask Judge Tolson to expand on his earlier judgement. She declared:
“It seems to me that there might be some mileage in an argument that, as things presently stand, he has not given sufficient reasons to justify his conclusion as to the father and his ruling out of the father as an option for caring for H.”
The Judge had not included some of the available evidence in his judgement and his decision therefore “ needed to be further explained by [him] so that the father and other readers could understand why it was that they amounted to reasons why he would not be able to care for H.”
Once Judge Tolson had set down his reasons in greater detail, the case should come back to the Court of Appeal, said Lady Justice Black.
“It should come back, if at all possible, to me.”
O (A Child) is here.