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Family Law

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21 DEC 2006

CARE PROCEEDINGS: Re R (Care: Rehabilitation in Context of Domestic Violence) [2006] EWCA Civ 1638

(Court of Appeal; Thorpe and Hooper LJJ; 15 November 2006)

The local authority had concerns about alcohol abuse and domestic violence within the family but did not intervene until the child was bruised by the father smacking her. When the mother responded to the intervention with hostility, the local authority removed the child, placing her with foster parents. A jointly instructed independent expert report recommended that the child be removed from the parents and adopted. The parents initially supported a placement with the paternal uncle and aunt, but the aunt and uncle withdrew from the proceedings after an adverse assessment report. The judge refused to make a care order and a placement order, although he did make an interim care order. The judge involved an independent social worker, and initiated rapidly increasing contact to the child in the parental home which amounted to partial rehabilitation, ultimately 2 days and 2 nights a week with the mother, the father having undertaken to absent himself from 6pm to 9am.

The judge, if in any doubt as to the local authority case, had an obligation to clarify what the case was and what the resulting nature of the judicial responsibility. The judge's failure to make proper findings of fact and to make a proper finding in relation to the threshold had been partially responsible for the conclusions ultimately reached. The judge had had insufficient regard to the boundary between judicial and local authority roles in care matters and had been insufficiently alive to the inhibitions upon him as a judge imposing on a local authority a future management which the authority felt, on strong evidence, unable to support. The judge had been wrong to reject the expert evidence on the grounds that: he had not heard of the relevant organisation; he had not seen the expert before; the report was overlong; and that the report contained technical expressions not comprehensible to the parents. It was difficult to understand why the judge had excluded a police report relating to the assault by the father. The judge's rehabilitative solution reflected the spirit of the Children Act 1989 but, in the context of these facts, had been both idealistic and unrealistic. The court made a care order, but considered itself unable to make a placement order.

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