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E (Through Her Children's Guardian) & Anor v A Mother & Anor [2019] EWCA Civ 1557

An appeal by a local authority and children's guardian against an order made by a circuit judge refusing an application for a placement order in respect of a 10 month old child who had been in foster care under an interim care order since birth.

The Court of Appeal allowed an appeal by the children's guardian and local authority against a circuit judge's decision refusing a placement order, but indicating that he would make a care order on the basis that the local authority changed its care plan, so that the parents had an opportunity to make changes. The local authority, supported by the children's guardian, had sought care and placement orders and had been supported by the children's guardian. The parents had sought the immediate return of E. E was 7 months old.

The Court of Appeal decided that the judge was wrong in the inferences drawn from the evidence and the adequacy of the reasons given, in doing the court gives useful indicators on what the court will need to do and say, if considering whether to give the parents some time to make changes. 
Baker LJ gave the only substantive judgment, with which Lindblom and Floyd LJJ agreed.

The trial judge had correctly cited the tripartite test identified by Sir James Munby P in Re S [2014] EWFC B44 in the context of evaluating the capacity to change in the Family Drug and Alcohol Court, namely:

(1) Is there some solid evidence-based reason to believe the parent is committed to making the necessary change?

(2) Is there some solid evidence-based reason to believe the parent will be able to maintain commitment?

(3) Is there some solid evidence-based reason to believe that the parent will be able to make the necessary changes within the child's timetable?

He had concluded that the answer to each of those questions was positive and

"Unusually time is on the side of this child. There is, in my view just enough time to demonstrate that change is possible and sustainable within the timetable for the child. We have not reached a position where nothing else but adoption will do."

Baker LJ dealt with a preliminary issue, as to whether the appeal was premature as the judge had not made the final order as he had directed a hearing to receive s revised care plan. He considered that the appeal needed to be made as quickly as possible [para 10]

Baker LJ decided that the judge was wrong to hold that the father's drug-taking was improving when the drug test showed that the father had been taking heroin, cannabis and codeine in the months prior to the final hearing. The father had in his oral evidence denied using heroin. [paras 37-38]

Baker LJ also concluded that the judge was wrong to rely on the mother's drugs test being negative for cocaine for 1 month before the hearing, particularly as she had said that she had not used for 4-5 months. [para 39].
There is no reference in Baker LJ's judgment to arguments about "run-off" i.e., where the positive result is explained by drugs continuing to appear (in reducing levels) over several months after last consumption because of the way that the body metabolises the drugs and the hair grows. This is usually a feature of such toxicology reports.

Baker LJ did not accept the adequacy of the judge's reasoning on the parents' commitment to make changes [para 40].

Baker LJ criticised the judge's failure to deal with the long history of domestic violence. Having  referred to PD 4J Baker LJJ concluded that "Unless this issue is addressed head-on and tackled by the parents, it is difficult to envisage any court placing a child in their care.",

Baker LJ said that the judge was wrong to reject the evidence of an expert about the prospects of therapy for their relationship (in a case where the father was resolutely against therapy) [para 42].

The judge had criticised the social worker and guardian for their formulaic analysis. Baker LJ rejected that view noting that they were following professional guidance on the format of their reports. [Para 44].

Finally Baker LJ said  the judge was regarded as "plainly wrong" in the period of time the parents were to have before the court would consider another placement order application. "I find it difficult to envisage any case where it would be appropriate to wait as long as eighteen months before making a decision about whether a seven-month-old child should be placed for adoption"

The case was remitted for rehearing by another judge.

Summary by Nick O'Brien, barrister, Coram Chambers

Full judgment E (Through Her Children's Guardian) & Anor v A Mother & Anor [2019] EWCA Civ 1557 on BAILII