Family Law Titles
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(Court of Appeal, Longmore, McFarlane, Davis LJJ, 30 July 2013)
The now 9 year old child had been abandoned by the mother but returned to her care 3 years later when he was diagnosed with severe autism. She requested respite care for 2 weeks but failed to make contact at the expiry of that period. The child was moved in foster care and care proceedings were commenced. The mother sought the child's return to her care with a programme of support including a supervision order.
The district judge found that while there was a strong bond between the mother and child, she could not be relied upon to provide adequate parenting and that to make no order would leave the child unprotected. The only option was a full care order.
The mother appealed on the issue of whether the judge had correctly performed the welfare evaluation at the conclusion of the care proceedings and whether the appellate judge had discharged her duty to conduct an effective review as to proportionality.
In family proceedings there would often be a single, central, welfare question for determination. The judge had to perform a welfare evaluation, applying the welfare checklist and then there would often be a choice between two or more options. In choosing between the options it was inappropriate to view each option in isolation, rejecting them one by one, and then selecting the only option left standing without any particular consideration of whether it contained internal deficits. What was required was a more global, holistic, evaluation of each option before deciding which one best met the duty to afford paramount consideration to the child's welfare.
The court had to actively evaluate proportionality in every case by conducting a balancing exercise in which each option was evaluated in the degree of detail necessary to analyse and weigh its own internal positives and negatives, each option then being compared, side by side, against the competing options. In this case the judge had conducted a linear analysis and had given to consideration to making a supervision order. Appeal allowed.
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