Care and placement orders made by the Family Court on the application of a local authority and supported by the children’s guardian have been overturned by the Court of Appeal.
In a case which Lord Justice Peter Jackson said had “somewhat unusual features”, children aged four and one had been made the subject of care and placement orders by the Family Court, with a view to adoption.
Both parents in F (Children: Placement Orders: Proportionality) – Urdu-speaking Pakistani nationals with a “precarious” immigration status – opposed the order made by Judge Scannell following three hearings and judgments which collectively stretched to 110 pages.
The judge, Lord Jackson noted, had conveyed “sustained and detailed” attention to the case over a year, and seen the parents give evidence three times over a period of six months.
But while acknowledging Judge Scannell had “directed herself correctly in law”, he allowed the appeal and set aside the care and placement orders.
The case centred around allegations of domestic abuse and injuries on the youngest child, with further allegations of abuse, assault and intimidation against the mother from the paternal family.
There was “little challenge” to the judge’s findings of fact that the father had been found to have perpetrated significant domestic abuse against the mother on five occasions between 2020 and 2023 in Pakistan and in the UK, two occasions being particularly serious and at least one being in the presence of the oldest child.
Bruises found on the youngest child during a hospital examination were also unchallenged, believed to have been inflicted by one or both parents. It was agreed that both parents had lied “extensively” to the court and a range of professionals, and had not accepted the findings of previous courts.
Although Judge Scannell had noted in earlier hearings that all professionals agreed the mother was “a warm and loving and attentive parent… capable of meeting her children’s emotional need to form loving attachments”, is “educated” and “clearly has a degree of intelligence”, she ruled that her “lack of insight and inability to work honestly with professionals” would prevent her from protecting the children from the father. The mother’s efforts to distance herself from the father – including an indication she would seek a divorce – “were born of necessity and she would be likely to reunite with him if she could”, she added.
Judge Scannell’s finding that the risks could not be reduced by protective measures were challenged by the mother, who appealed on two grounds: the care and placement orders were neither necessary nor proportionate, and the welfare evaluation was procedurally flawed.
Rejecting the second ground, Lord Jackson allowed the not “entirely easy appeal” on the first ground.
The decision was “not fundamentally based on past harm suffered by the children”, he noted, “but on the likelihood of future harm arising from past events and present attitudes”.
He added: “Ultimately, the current decision does not in my view satisfy the very strict requirements for severing these children from their family. That is either because the proportionality assessment was not undertaken effectively (as held in Re H-W) or because the judge’s conclusion was wrong (as asserted in Re B), or for both reasons. I would therefore allow the appeal and set aside the care and placement orders. In consequence, the interim care orders will revive.”
In agreement, Lord Justice Dingemans emphasised the importance of liaison between the Family Court and Immigration and Asylum Chamber of the First-tier tribunal.
“It is apparent that the possible outcome of family proceedings may be relevant to decisions in the Immigration and Asylum Chambers, see generally RS (immigration and family court proceedings: India) [2012] UKUT 00218 (IAC), at paragraphs 1 to 3 of the ruling and directions”, he explained. “It is also, however, apparent that the outcome of proceedings before the FTT(IAC) may be relevant to the Family Court. As Peter Jackson LJ has noted in paragraph 2, the immigration status of the parents is precarious.
“For example, if the father in these proceedings did not have a right to remain in the UK, that might be a relevant factor for the consideration of the Family Court.”
Lord Justice Edis agreed with both judgments. The matter will be remitted to the Family Court for a final welfare determination.
