Mc G v Neath Port Talbot County Borough Council

Where a care plan would permanently sever children from their parent, that step should be taken only after all reasonable avenues for rehabilitation have been explored. A court may therefore err by refusing an adjournment for a specialist assessment of a learning-disabled parent where the available evidence shows that the absence of such an assessment may have prejudiced a reliable evaluation of parenting capacity.

Placement orders must respect Article 8 rights. Express consideration of those rights may be the safest course, but the judgment did not decide that a prescribed formula must appear in every judgment.

The local authority obtained care and placement orders for three children after the Swansea County Court found that their mother could not safely resume their care. The mother had learning difficulties and sought an adjournment for a specialist parenting assessment. Although an earlier case-management decision had permitted only a psychological assessment, later expert evidence indicated that a specialist assessment should have been undertaken and that its absence had prejudiced the mother.

The mother sought permission to appeal against the refusal of an adjournment and the final orders. The local authority did not actively oppose the appeal and the children’s guardian supported it. The appeal also concerned a finding that one child had been sexually abused, which rested on the judge’s mistaken understanding of the medical evidence.

1. The court granted permission and allowed the appeal. It set aside the care and placement orders. A plan involving permanent legal and factual severance of children from their mother required reasonable exploration of rehabilitation. In the particular circumstances, the absence of a specialist assessment of the parenting capacity of a mother with learning difficulties, together with the expert evidence about its potential significance, meant that the refusal to adjourn could not stand.

2. The court acknowledged substantial evidence that the mother had resisted professional assistance. That evidence remained important for the future determination. It did not, however, justify final severance before the specialist assessment issue had been properly addressed, particularly as professionals without specialist training may have misunderstood the stance of a learning-disabled parent.

3. The court observed that placement orders must not infringe the family-life rights protected by Article 8 of the ECHR. It noted the statement in EH v X London Borough Council [2010] EWCA Civ 344 about explicit Article 8 reasoning in adoption cases. Express consideration may be the safest means of ensuring compliance, but the court left open whether that statement imposed an absolute requirement for particular words. The ordinary appellate approach remains that a judge is assumed to know and apply the relevant law unless the judgment shows otherwise: Piglowska v Piglowski [1999] 1 WLR 1360.

4. The finding that H had been sexually abused was set aside. Its sole stated basis was the judge’s mistaken belief that two paediatricians had not observed extension of scarring to the perianal area. Their records showed that the extension had been recorded, so the reason for preferring the contrary expert evidence failed.

5. The court made interim care orders for 28 days, transferred the proceedings to the High Court, Family Division, Cardiff District Registry, and directed a hearing before the Family Division Liaison Judge for Wales to give directions for specialist assessment and a timetable. There was no inter partes order for costs, subject to detailed public-funding assessment for the mother and the children.

• Court of Appeal (Civil Division): By [2010] EWCA Civ 821, granted permission and allowed the mother’s appeal. It set aside the care and placement orders and remitted the proceedings for specialist assessment and further determination.
• Swansea County Court: HHJ Dafydd Hughes made care and placement orders on 26 March 2010 and declined to adjourn for a specialist parenting assessment.