Family Law Titles
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(Court of Appeal; Thorpe and Smith LJJ and Munby J; 28 March 2007)
Following an inconclusive fact-finding hearing (crucial witnesses had declined to give evidence) the mother had responded to the threshold document with a document described as 'threshold concessions', a mixture of confession and avoidance. It was accepted that the parents were able to meet the child's emotional and physical needs at the time of the hearing. The issue was whether at some time in the future emotional instability would result in emotional, possibly physical, harm to the child. The experts pointed to a number of risks that the child might be exposed to, particularly risks flowing from the fragile personalities of both the mother and her partner. The judge made a care order, approving the local authority's plan for permanency through adoption, and proceeded to make a placement order.
The judge had failed properly to address the crucial question as to whether a care order and adoption was a proportionate response to what was feared in this case. A sequence of risks had been identified, each of which could become a reality in all probability if, but only if, a previous risk had become a reality; both the experts and the judge had had to evaluate the degree of risk, and the gravity of the outcome in the case of each risk. Parents did not need a long and detailed judgment, and might be assisted most by homely rather than technical language, but in this case they had been entitled to a judgment that identified and evaluated those risks the judge was satisfied existed, and then adequately articulated the reasoning that had led the judge to the conclusion that the risks required alternative care through permanency. The judge had failed to perform the evaluation exercise properly, making little more than broad statements to the effect that the experts were all of the view there were real risks, without any sustained or sufficient analysis of what those various risks were and how they related to the evidence. Most important, there seemed no awareness in the judgment that in very significant measure the feared risk of either emotional or physical harm to the child was a risk which would become a reality only if the parents' relationship broke down, and in consequence of that the mother suffered a collapse of her personality, and in consequence of that the child was exposed to and suffered either emotional or physical harm.
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