Re M: A sad and moving case

Family Law|February 4th 2016

As I have said here before, I don’t normally comment upon public law cases, as I have not practised in the field of child care work since the 1990s and am therefore a little rusty on the subject, to say the least. However, a case I have just read has moved me to put finger to keyboard.

Re M (Children) concerned the plight of two brothers ‘JK’, now aged 12 and ‘JA’, now aged 10. As Lady Justice King said in her judgment, JK and JA have suffered appalling life experiences to date and the prognosis for their future happiness is poor. Initially, whilst in the care of their birth parents they were “subjected to appalling neglect including physical and possibly sexual abuse”, as a result of which they now exhibit extremely disturbed and challenging behaviour, particularly JK, who has had violent fits of rage, and has exhibited sexually inappropriate behaviour towards his younger brother. They were removed from their parents by the local authority in 2007 and then had multiple placements with foster carers, each placement breaking down when the carers were no longer able to cope with their behaviour.

Things appeared to look up when their final foster placement was more successful than the earlier ones. They started going to a primary school where JK’s teacher became aware that the children were to be separated and that the local authority were struggling to find adoptive placements for them. She and her husband (who I shall now refer to as ‘the parents’) decided to offer them a home and put themselves forward as adopters of both boys. Despite an assessment that the boys should live apart from each other, the local authority placed the boys with the parents in September 2010, with a view to them being adopted by the parents.

Adoption orders were duly made in June 2013. However, both boys were taken into care in May 2014 following an incident when JK arrived at school with his nose bleeding alleging that his mother had hit him in the face, whilst in the car on the way to school. The mother immediately accepted that she had slapped JK but she said it had been in circumstances where he was dangerously out of control and interfering with her driving of the car.

Care proceedings were subsequently instigated. The parents accepted that they had smacked, shouted, and physically restrained the children, and that this behaviour had been perceived as unfair and excessively punitive by the children. The parents also accepted that their parenting style had been re-traumatising for the children due to the children’s experiences with their natural parents, and that they had failed to consistently provide the high level of nurturing expected in their care, which such very vulnerable children needed. However, they claimed that following the making of the adoption orders, the support they were offered by the local authority in caring for children fell away, leaving them to cope with two very difficult children on their own.

The court made care orders in respect of both boys. The parents accepted that JK’s best interests could only be served by the continuation of the care order made in respect of him. However, they appealed against the making of the care order in respect of JA, seeking the discharge of the order and the immediate return of JA to their care.

The appeal went to the Court of Appeal, where Lady Justice King gave the leading judgment. She found that the judge in the court below had failed to deal with key issues in his judgment. In particular, he had not considered what help was available to the parents and whether they would respond to it, nor had he considered the positives and negative aspects of a further attempt to have JA at home, set against the obvious disadvantages of long term fostering for a child of his age. This exercise would have included consideration of whether the relationships between the adults and children were beyond repair and therefore no amount of support would help.

Lady Justice King concluded:

“It is often said the principle purpose of a judgment is to explain to the losing party why they have lost their case. The crisp and concise judgment is undoubtedly to be applauded. In my judgment however, the judge, no doubt in his endeavour to provide an immediate decision, failed adequately to analyse the evidence or explain his reasons for reaching the conclusion he did. Every parent whose child or children are removed permanently from their care at the conclusion of care proceedings is entitled to understand why the judge has decided as he has. These parents needed to understand with clarity why it was now too late for there to be reparation on their part even though they had made abundantly clear their willingness to do anything required of them which would mean JA could return home to their care.”

In the circumstances the appeal was allowed, and the case was remitted for a retrial.

Lady Justice King also pointedly expressed the hope that: “even in the straightened times in which we live, local authorities appreciate that failure to find the funds necessary to support those who adopt disadvantaged children is all too often a false economy, and ultimately it is the children who pay the price when an adoptive placement breaks down.”

Quite.

The full report of Re M (Children) can be read here.

Author: Stowe Family Law

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