CARE/ADOPTION: Re M-H (Assessment: Father of Half-Brother) [2006] EWCA Civ 1864

21 DEC 2006

(Court of Appeal; Thorpe, Carnwath and Wall LJJ; 21 December 2006)

The mother had four children, each by different fathers. The eldest son was living with his father; the younger son was being cared for by the local authority. The local authority wished to place the younger son for adoption outside the family. The father of the eldest son sought to be formally assessed as a potential carer for the younger son, although unrelated to him, on the basis that it would be best for both children to be brought up together. At the final hearing the judge criticised the local authority's viability assessment of the step-father as inadequate and flawed, but, relying on the guardian's report to correct the flaws in the local authority assessment, refused to order a full independent assessment. The judge, having made the care order, authorised the local authority to place the child for adoption outside the natural family.

An independent viability assessment must take place. The exercise of a judicial discretion in a care case was an amalgam of expertise from a number of disciplines, an essential part of which was or should be competent social work assessments, which the judge could then appraise and accept or reject. In order to do proper justice to the child's interests in the instant case the judge had required thorough independent social work; the judge had denied himself that input while at the same time recognising that the local authority had failed to provide it. The judge had been under a serious misapprehension if he had believed that the guardian had carried out a full or proper viability assessment.

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