interim care orders, care for physically abused children

Legal case notes: interim care order

Michael Segal reports a case of local authority proceedings to obtain care orders for three young siblings

The facts
There were three children, two boys and a girl, all under the age of three. The eldest, a boy, told his nursery school teacher that his father had hit him on the bottom with a belt because he would not stay in bed. He was in fact badly bruised. Shortly afterwards bruises were seen on the younger boy’s bottom, consistent with the mother’s admission that she had smacked him hard. He also had fingertip bruises on his ribs, shoulder and abdomen, consistent with her explanation of grabbing him to restrain him when he was trying to run away. The girl was not bruised, but the mother admitted that she had unreasonably chastised her. The parents had separated, and the children lived with the mother.

The local authority began care proceedings, and the judge found that the father had hit the elder boy with a belt, and that the mother must have heard the boy’s screams but had not intervened. He took into account the fact that the mother was suffering from depression, and the fact that the father could be aggressive and confrontational. He found that the injuries to the younger boy were consistent with the mother’s explanation of having struck him too hard, and he found that she had subjected all three children to unreasonable chastisement. He found that she was unable to cope with the children when they exhibited challenging behaviour.

The elder boy suffered from attention deficit hyperactivity disorder which significantly impaired his day-to-day functioning. The judge described the two younger children as both having attachments to the parents, and he concluded that an assessment was required of the mother’s ability to care for them. The local authority wanted full care orders in respect of all three children, on the basis of adoption.

The judge took into account the fact that the mother was a young mother faced with very real and very considerable problems which called for sympathy. The girl had been born with a cleft palate, and both she and the younger boy had difficult ear problems. The younger boy was diagnosed as suffering from primary generalised epilepsy. The case proceeded on the basis that the father would have supervised contact with the children.

The judge made a care order in respect of the elder boy on the basis of adoption. He was satisfied that this boy’s individual needs were too great for either parent. But he declined to make full care orders in respect of the two younger children.
He said: ‘I am not yet persuaded that the mother does not have the ability to care for the two younger children in a proper manner. I accept that delay is usually not in the best interests of children, but they are still quite young and, if it becomes clear that the mother has not the ability to care for them safely, then I do not foresee any difficulties in obtaining an adoptive placement for them. Insofar as the two younger children are concerned, the boy had a bruised bottom, and the girl was slapped excessively on the hands on a number of occasions. Now I am not condoning it for one moment, but if a child was taken into care and adopted because of that, then I rather think that in such cases a significant number of children would be at risk with whom the local authority has never got involved’.

The judge made interim care orders in respect of the two younger children. The local authority appealed against his refusal to make full care orders.

Held
The judge had been right, not only in his decision to separate the elder child from the younger children, but also in his decision to have the mother assessed. Lord Justice Ward said: ‘The judge said “I am not yet persuaded that the mother does not have the ability to care for the two younger children in a proper manner”, which could be translated into the legal language of “I am not satisfied that the local authority has discharged the burden of proof which rests upon it.” That finding would have justified him in refusing to make an order, but he elected a safety-first approach. This is a case of physical chastisement of these two children which cannot be condoned, but which cannot be classified by any stretch of the imagination as of a severity and seriousness or persistent enough to justify the disproportionate remedy of removing the children from the family where they belong and placing them for adoption. The judge did not address this in the human rights terms of proportionality but, had he done so, he could have come to only one conclusion, which is the conclusion he arrived at, namely that this was not, on the evidence presented before him at that stage, a case requiring the making of a care order. In my judgment he was totally right in his assessment of the case.’

Comment
It has become common for the media to accuse local authorities of harshly and insensitively taking children away from their parents, and of doing so in closed courts behind locked doors. This case shows not only how ready and able the courts are to protect children from misjudgment and over reaction on the part of a local authority, but also that the details of children’s cases, properly anonymised, are readily available to lawyers and interested members of the public. On its facts, this case is an interesting example of the principle that, while unnecessary delay is to be avoided, sometimes what has been called ‘planned and purposeful delay’ can be in the interests of the children involved.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision-making within the court system.

This article first appeared in Protecting Children Update - Sep 2007

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