W (Children)

In private law children proceedings, the court must obtain evidence essential to a proper assessment of each carer’s ability to meet the children’s needs. The disadvantages of delay cannot justify deciding the case with serious evidential gaps, particularly where a necessary assessment can be completed within a defined period.

A court must consider the medium- and longer-term welfare consequences as well as the immediate effects of delay. A lack of evidence caused by the absence of an assessment must not be used against the unassessed parent or effectively reverse the forensic burden.

Two children had lived with their paternal grandmother since their mother placed them there after local authority intervention. The mother later sought a residence order and their return. Although the local authority repeatedly said that assessment of her current parenting ability was required, no assessment was completed.

Mrs Recorder Knapton refused an adjournment, dismissed the mother’s application and made a residence order in favour of the grandmother. The decision rested principally on the perceived harm of further delay and the absence of evidence that the mother could meet the children’s needs.

The mother appealed. The decisive issue was whether refusal of an adjournment deprived the court of evidence essential to assessing her parenting ability and determining the children’s welfare.

1. Appeal allowed. The Recorder made a double error by refusing an adjournment for the required assessment. She thereby denied herself vital evidence needed to fill serious gaps in her knowledge of the mother and her ability to care for the children. That information was essential to the proper discharge of the court’s duty under Section 1(3)(f) of the Children Act 1989. The case was remitted for an urgent directions hearing and rehearing by a circuit judge in the Family Court at Middlesbrough.

2. The Recorder placed excessive weight on delay. The evidence did not support the weight given to its anticipated consequences, while the description of the proposed assessment as creating open-ended delay was speculative. The court also failed to address the medium- and longer-term implications of deciding the children’s placement without an assessment.

3. The resulting procedure was unfair to the mother and approached an effective reversal of the forensic burden. The absence of evidence that she could provide the same support as the grandmother resulted from the failure to assess her. It could not fairly supply the basis for rejecting her case.

4. The court expressed serious, but non-conclusive, concerns about the local authority’s intervention. If arrangements were made under Section 20 of the Children Act 1989, its use could not amount to compulsion in disguise. Any agreement required genuine consent rather than submission to asserted State authority, consistently with Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam) and R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin).

5. If the children were accommodated under Section 20, the mother was entitled under Section 20(8) to remove them at any time. The court was disturbed by the possibility that the local authority had effectively controlled placement and contact without care proceedings, proof of threshold or the protections provided by Part IV of the Children Act 1989. No concluded view was possible because the local authority did not participate in the appeal.

1. Court of Appeal (Civil Division): The appeal was allowed. The case was remitted to the Family Court at Middlesbrough for an urgent directions hearing and rehearing by a circuit judge.

2. Middlesbrough County Court: Mrs Recorder Knapton refused an adjournment for a parenting assessment, dismissed the mother’s application for a residence order and made a residence order in favour of the paternal grandmother.