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H-W (Children: Proportionality) [2021] EWCA Civ 1451

The current care proceedings related to the youngest 4 children (C, D, E and F). Concerns re-emerged in November 2019 (very shortly after the case had been closed to social services).

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Background and previous care proceedings

The mother (M) has six children: A (aged 21), B (aged 18), C (aged 13), D (aged 10), E (aged 8) and F (aged 1.5).  C and D have the same father (F1).  E's father is F2.  M and F2 were in a relationship when M was a young teenager, and that relationship was sexually abusive.  They resumed their relationship for 1 year in 2011/2012.  F's father is F3, who was previously M's mother's partner.  His son, G, had lived with the family from 2016-2018.

The local authority had been involved throughout M's life, and the main concerns were sexual abuse and neglectful home conditions.  M was herself in care as a child, and A was born when M was 16.  A had behavioural difficulties and was placed first in a boarding school and then in foster care.  Both B and G alleged that A had sexually abused them.  Concerns heightened when M and F2 resumed their relationship.  M agreed that he would not have contact with the children, but he was found in the home in 2013.  This lead to care proceedings.  HHJ Wright refused to remove the children from the home, but in a fact-finding made a number of findings of sexual abuse, including findings about A's sexual behaviour.  He found that F2 was a sexual risk to the children.  Ultimately a care order was made in relation to A, and residence orders to M in relation to B, C, D and E, together with a supervision order.  There was no LA involvement between 2015 and 2016, but the children became subject to child protection plans in 2018.  By March 2019 this had stepped down to child in need plans, and the case closed again in October 2019.

There were care proceedings in relation to F3's children in 2016.  In those proceedings an order was made that G would live with F3.  In 2018 F moved into foster care.  In a subsequent hearing M and F3 were not blamed for the breakdown of the placement.

Current proceedings

The current care proceedings related to M's youngest 4 children (C, D, E and F).  Concerns re-emerged in November 2019 (very shortly after the case had been closed to social services).  A had been allowed to stay in the home when his own accommodation became unavailable, and he had sexually assaulted E during a brief period in which he had been left alone.  M did not report the event for 3 days and permitted A to remain in the home.  The judge found that A had sexually assaulted E and that M and F3 had failed to protect the children from sexual abuse, and risk of sexual abuse, and had delayed in reporting the assault.  The police became involved but took no action.  An initial child protection conference occurred in January 2020, but proceedings were not issued until E suggested (to a student social worker and her head teacher) that the abuse from A had been more extensive.  However, findings were only made in relation to the November assault, and not the more extensive allegations which led to proceedings being issued.

The Local Authority sought to remove the 4 younger children from M's care, and for a placement order in relation to F.  In his judgment, the judge rejected M's evidence that she had not understood the 2013 judgment about A's sexual behaviour towards B and G.  He found that F3 very much follows M in terms of decision-making, and so he did not take action when A returned to the home, despite his own knowledge that A had sexually assaulted G (his son).  He concluded that all the children were placed at risk of significant sexual harm and that E had suffered significant sexual harm.  He was not satisfied that the parents had learned sufficiently, nor that they had the capacity to learn and understand sufficiently.  He agreed that a move to foster care was not without difficulties and risks.  He accepted (on balance) that he would follow the Guardian's recommendation that B should be assessed as a carer for F.  Care orders were made in relation to C, D and E.  An interim order was made in relation to F, with a care plan that either she would be placed with B after a period of assessment lasting 12 weeks, or in a foster-to-adopt placement.  A stay was granted (extended by the Court of Appeal) and the children remained at home pending the appeal.

Grounds of appeal

There were 2 grounds of appeal:

(1) That the expert was wrong to take into consideration factual matters which had not been proven, and the social work and Guardian's assessments were flawed as they relied upon the expert evidence;

(2) The orders were disproportionate to the risks that the children would be exposed to if they remained at home.

The court rejected the first ground, noting that a psychiatric assessment may be based on many different pieces of information, not simply proven facts, and as long as the court makes it own assessment of that opinion, and is clear about which parts of that opinion may be based upon erroneous or contentious information, there is 'nothing unusual about that'.

Jackson LJ allowed the appeal on the second ground.  He agreed that A represents a serious sexual risk, but found that the first instance judge did not address whether the continuation of a non-molestation order against A, plus a supervision order (the protective measures which had been in place throughout the proceedings) would provide sufficient protection for the children after proceedings, particularly when balanced against the significant impact on the children of removal from the only home they had known, and the impact on F, who was reported to be doing well in her parents' care. 

However, Laing LJ and Lewison LJ did not agree that the first instance judge was wrong.  He clearly had all aspects of the case in his mind, and whilst there are criticisms of the judgment which can be made, they could not say it was wrong.  The first instance judge had made clear findings about M's parenting ability and her inability to learn sufficient skills to provide safely for the children.  In cases which are marginal it is all the more important to trust the wisdom and discretion of an experienced family judge.  Lewison LJ noted that he was in the 'uncomfortable position of reviewing a decision which I cannot say was right or wrong.  In that situation Lord Neuberger [in Re B] considered that the appeal should be dismissed'.

Case summary by Julia Belyavin, Barrister, St. John's Chambers

For full case, please see BAILII