Thursday, February 14, 2013

RCW v A Local Authority: An unusual and troubling case

Mr Justice Cobb
A summary of RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013).

Mr Justice Cobb, giving what must be one of his first judgments since being appointed to be a Justice of the High Court (although he heard the case just before his appointment), rightly described this as "an unusual and troubling case". It concerned an application by a prospective adopter ('RCW') for an injunction under section 7 Human Rights Act 1998 to prevent the local authority from removing the child from her care.

The circumstances were that almost immediately after her birth the child was abandoned by her mother. The local authority commenced care and placement order proceedings, and these were "resolved without any material opposition". The child was then placed with RCW, and the placement "appears on all accounts to have been an extremely successful one".

As Mr Justice Cobb says, things then took "an unexpected and wretched turn". RCW was diagnosed with a tumour on the brain. On the very day she was entitled to make her application for adoption, she was admitted to hospital for an operation to remove the tumour. The operation left her without sight, although it is not yet known whether that loss of sight is temporary or permanent.

After she left hospital, the local authority informed RCW that it had decided that the child should be removed from her care. This decision was based upon an assessment of RCW by a social worker undertaken on the very day RCW was discharged from hospital. RCW then lodged an adoption application, and on the same day received a letter from the council indicating their intention to remove the child from her care (it was not clear whether the letter was received before or after the application was issued). RCW then issued her application for injunctive relief.

RCW claimed:

1. That she was entitled to the protection of s.35(5) ACA 2002 (and therefore did not have to return the child unless the court so ordered), because her application to adopt was "made" before she received notice of the intention to remove.

2. That even if that was not the case, any removal under section 35(2) would infringe her (and the child's) rights under article 8 ECHR (Right to respect for private and family life). RCW and the child had established a home together, and the child regarded RCW as her mother.

3. That she was not involved in (or invited to be involved in) any of the decision making of the local authority; she had not had an opportunity to be heard, either fairly or at all, on the issue of the removal of the child from her care.

4. That the removal of the child was in contravention of section 15 Equality Act 2010, i.e. discrimination arising out of disability.

5. That she had made proper arrangements for the child's care while in hospital and while she is recuperating and adjusting to her new situation.

6. That her requests for support from the local authority had not been taken up.

The main thrust of the local authority's case was that RCW was no longer able to be the child's "primary attachment figure" because she will, through force of circumstance, now be reliant on friends and supporters to provide key care for the child.

Mr Justice Cobb found in favour of RCW.

Irrespective of the s.35(5) point, he did not consider that the local authority had given RCW a full and informed opportunity to address its concerns about the future care arrangements for the child, and had therefore acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.

RCW had made entirely appropriate arrangements for the child's care, at least in the short term. He was not satisfied that simply by virtue of her visual impairment RCW is unable to give an appropriate level of emotional care to the child, as the local authority asserted. The ability for RCW to provide good emotional care for the child (probably with support) needed to be properly assessed.

He stopped short of finding that the assumptions which the authority had made about parenting by a carer who is blind were discriminatory, but said that they had "shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent" and that the issue of them offering support needed to be addressed urgently.

Accordingly, he made the injunction in the terms sought.

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