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Re R: Evaluating the Option

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There has been much confusion and uncertainty following judgment in the cases of Re B-S [2013] EWCA Civ 1146 and Re B (Care proceedings: Appeal) [2013] 2FLR 1075 and the President has, in the judgement of the case of Re R (A Child) (2014) EWCA Civ 1625 (in which I acted on behalf of the mother) sought to clarify the issue further.

The mother accepted the threshold in the proceedings which was based upon domestic violence between the parents, alcohol abuse, concerns about the mother’s relationship with the child and whether she had resumed her relationship with the father. During the course of the proceedings the local authority commissioned a parenting assessment which was negative for each of the parents who were presenting separately. Following the negative parenting assessment the mother completed a number of parenting courses, attended an alcohol awareness course, domestic violence counselling and was enrolled to commence counselling to address other issues identified – all of which she arranged without the assistance of the local authority.

It was acknowledged at the final hearing that it was a pity this case had not been in a Family Drug and Alcohol Court in light of the willingness of the mother to engage with professionals to address the deficits identified in her parenting as the professionals concerned were of the view that the work required was not within the child’s timescales. There were a number of grounds of appeal  which were set out within the judgment.

During October 2014, the London Family Justice Board held seminars which were design to dispel the myths which surround these cases and their implications. The keynote speaker, Mr Justice Ryder provided a comprehensive and informative speech in which he highlighted the fact that Re B and Re B-S were “not intended to redraw the statutory landscape” and that the statutory test should not have a “gloss” placed upon it but that the aim of these cases was to act as a revision of good practice in respect of the existing test rather than eliciting a new test or presumption.

These cases serve to restate the need for the court to:

  1. Undertake a welfare analysis of the realistic options available in respect of the placement of a child using the relevant checklist (s.1 (3) Children Act 1989 and s. 1(4) Adoption and Children Act 2002)
  2. Conduct an evaluation of the options available for the child(ren) subject to the proceedings

When the welfare evaluation is being conducted, significant issues such as the severance of sibling relationships and the impact on the child(ren) concerned should not be overlooked.

In situations where a parent is seeking a second opinion it is important that the assessment is a proportionate reaction to the facts of the case as an assessment undertaken prior to the issue of court proceedings maintains its evidential value unless there has been a significant change of circumstances which necessitates further assessment.

The aim should be for concurrent care and placement applications to enable the analysis of the evidence to be considered altogether which will assist the court in dealing with applications to dispense with the parental consent to a placement order (s.52 Adoption and Children Act 2002).

In short, it is essential there needs to be a holistic evaluation of the realistic welfare options for each child within care and placement order proceedings which is supported by evidence. 

Please click here for the case on Bailii

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