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Family Law

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Court of Protection Practice and Procedure Conference 2016

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15 OCT 2013

CARE PROCEEDINGS: Re W (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 1227

(Court of Appeal, Sir J Munby P, McCombe, Ryder LJJ, 11 October 2013)

Care proceedings in relation to the now 21-month-old child were initiated shortly after her birth but the mother and child remained together under a series of interim care orders in foster placements, and latterly, independently living. The mother had made allegations of sexual abuse by her three brothers and physical abuse by her parents and, therefore, the local authority concern was as to the likelihood of harm by extended family members and the ability of the mother to protect the child.

The mother withdrew the allegations claiming that she had fabricated them and that, therefore, there was no risk but the local authority view was that they were probably true. The mother was found during the fact-finding hearing to have lied and invented serious allegations. An independent psychologist reported that the mother continued to make allegations and had aggressive and violent motives.

At the welfare hearing the judge held that there was a substantial and unpredictable risk of emotional harm to the child's welfare due to the mother's maladaptive behaviours. The court accepted evidence which demonstrated that the mother required ongoing mental health support and social work supervision but the care plan had failed to identify services which could meet those needs. The judge determined that the child should remain with the mother although parental responsibility should be shared between the local authority and the mother. The mother appealed on the basis that the care order was disproportionate and that the judge had insufficient evidence as to the benefits and detriment of statutory intervention to analyse proportionality.

The appeal was allowed. There had been a lack of evidence weighing up the impact of statutory intervention for the judge to be able to analyse what form of order would be proportionate. That lack of evidence had been a consequence of the authority's stance. The missing evidence ought to have been filed and its absence had vitiated the exercise of determining the proportionality of the order made. The care order would be set aside and an interim care order substituted.


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