This case centres around the use of care orders and alternative custody, with the child’s welfare being the court’s paramount consideration

Re: M-H (a child)(care order) [2007] 3 FCR 319, CA

The facts
The mother, Miss M, had four children by different fathers. There were two older children, together with D aged seven and K aged three. None of the fathers, except Mr F, the father of D, played any meaningful part in the children’s lives.

In 1999, before K was born, the local authority applied for emergency protection orders in respect of the three eldest children. The concerns expressed by the professionals were the heavy drinking by Miss M and Mr F, domestic violence, and Mr F’s criminal record for violence. In 2000 Mr F left Miss M. The children remained with Miss M and, in late November 2000, care orders were made on the basis that the children remain with her.  By early 2001 she was again drinking heavily, and the local authority took the children away from her. D was placed with Mr F for assessment.

Although in 2002 Mr F was convicted of a public order offence, and made the subject of a community rehabilitation order, he successfully completed his community rehabilitation, which included an anger management course, and an independent social worker reported that D was thriving in his father’s care, was well settled, and had made friends in his area and at his school. In 2003, with the support of the local authority, a residence order was made in respect of D in favour of Mr F, together with a 12 month supervision order which, when it expired, was not renewed.

K was born in the same month as Mr F completed his community rehabilitation, by which time K’s father had left Miss M, who was again drinking heavily. The local authority began care proceedings in respect of K. A psychiatrist specialising in alcohol dependency expressed pessimism about Miss M’s ability to care for K given her alcohol dependency and, in 2006, K was placed in foster care. Mr F put himself forward as a potential carer for K and, at his request, the local authority carried out a risk and parenting assessment. The assessment was unfavourable, and the local authority’s care plan for K was that he be adopted.

Mr F was made a party to the proceedings, but his request for an independent assessment was refused. Although the judge found that the local authority’s assessment was wholly inadequate and flawed, he concluded that not only had the guardian carried out a fair and full and adequate assessment, but also that he (the judge) was able to carry out a ‘pretty thorough’ assessment at the hearing, and that nothing arising out of a further assessment could change that view.

He made a care order and a placement order. Mr F appealled against the refusal of an independent assessment.

The appeal was allowed, and the Court of Appeal directed an assessment from a jointly instructed expert, followed by a further hearing.

There were very real causes for concern about Mr F’s anger management, and a recent incident in which he had been involved (a fight in the street following a football match) was a serious one. It might well be that a further assessment would be unfavourable, but it was clear from the guardian’s report not only that she had not carried out a full and adequate assessment of Mr F, but also that, because of her concerns about his violent behaviour, she had not intended to do so. The judge was under a serious misapprehension if he believed that she had done so. The judge had been wrong to deny Mr F the assessment he sought, and wrong to think that the gap could and would be plugged by the guardian, so that he was thus left to decide the case with an important piece of evidence missing.

Given the significance of the decision, which would be determinative of the entire pattern of K’s future life, this gap vitiated the decision and marred the exercise of his discretion. The interests of the child required an exhaustive investigation of his welfare needs and the options open to fulfil them. The judge had cut the investigation inappropriately short.

To do proper justice to K’s case, the judge needed the thorough independent social work input, by means of a viability assessment, which Mr F had sought. It was a piece of work which had to be undertaken if K’s welfare was to be fully and properly considered.

The exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is competent social work assessments, which the judge can appraise and accept or reject, but the actual making of such assessments is not his.

This is yet another illustration of the principle that the child’s welfare is the court’s paramount consideration. The judge might well have been influenced by another important principle, ie that delay is contrary to the interests of the child.  In some cases, where it is clear that delay will harm the child, the child’s welfare requires an end to further enquiries and investigation, which are sometimes used as a delaying tactic by a parent when all else has failed, but this was not such a case. Note the court’s emphasis on doing proper justice to K’s interests, not Mr F’s, although the refusal had clearly been unfair to Mr F as well as to K.

Had the appeal been dismissed, Mr F might well have had a legitimate grievance, which would have reinforced the widely held but mistaken view that family courts are routinely unfair
to fathers.

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.

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