When a case is described finely balanced, how important are the children’s expressed wishes and feelings? Dorset Council v M & Ors (Removal : Balance of Harm) [2021] EWFC B43

This is a post by Sophie Smith-Holland. Sophie is a family law barrister at St John’s Chambers, Bristol. She tweets as @SSmithHolland.

In my last post I wrote about a case where the Judge disagreed with all the professionals and refused to approve a care plan of adoption. He carried out his own analysis of the options and decided that it was in the children’s best interests to be placed in long-term foster care instead.

In this post I am going to look at another case where the Judge disagreed with all the professionals. Every case is fact specific but what makes cases like this interesting is seeing what it was that made the Judge’s decision fall on the opposite side of the line to the professionals when the decision is said to be “finely balanced” and “on a knife edge”.

A different feature in this is case is the ages of the children. In the last case I looked at, the children were 3 and 2 years old but, in this case, they were much older. The child referred to as “A” was nearly 15. She had her own solicitor because she strongly disagreed with the Local Authority (LA) and Children’s Guardian. She wanted to remain at home.

In every case, the children’s welfare is the court’s paramount consideration. One part of the checklist of things that the court must consider is each child’s wishes and feelings. In this case, the Judge placed a lot of weight on the children’s, particularly A’s, wishes and feelings.

I am going to explain the background of the case and pick out bits of the judgment that are relevant to the children’s wishes and feelings and then, look at the Judge’s balancing exercise.

Background

The case concerned care proceedings about three children: A, B (10), C (7) and a baby called D. All the children had been living with their mum (M) throughout the proceedings.

The Judge was being asked by the professionals to make final care orders for A, B and C and an interim care order for D. A final order was not being sought for D was because DNA test results were received during the hearing which showed that F was not D’s father. So, there were enquiries to be made in respect of D’s paternal family.

Two months before the final hearing, the LA had been saying that the children could stay with M under interim supervision orders because M’s parenting had been positively assessed. But two things happened in the time after that assessment and before the final hearing which caused them to change their mind: there had been a psychological assessment of M and M underwent a hair strand test in July, and it showed cocaine present over the three months to 9 July.  

Because of the change to the LA’s plan, the children’s Aunt P came forward to care for them. The parents asked the Judge not to make any final orders and to adjourn the hearing until the assessment had been completed.

The LA and CG said the risks were too high and that if the Judge was not going to finish the case at the hearing, then he should make interim care orders removing the children from M.

A’s participation in the proceedings

Everyone had to think about how A would be involved in the proceedings. The Judge suggested that he would meet A at the start of the hearing, or she could express her views by way of informal evidence. He said he would be happy to write to A at the end to explain what happened, and he could meet with her again to answer any questions. In the meeting A said:

she was struggling with school because she was worried about this case and what might happen.   She was clear that her mother had made changes, that she felt safe and settled and that she wanted to stay home with her brother and sisters.   She could understand why they might have needed to be removed when her parents were together.   But she could not understand why now when things were so much better.  She was clear she would say if she thought she and her siblings were at risk.  She felt removal would affect her mental health for the worse.

The balancing exercise

As part of his decision making, the Judge had to consider the risk of harm to the children of removal from M versus the risk of harm if they were not removed. The factors he considered which were relevant to the children’s wishes and feelings were:

• removal against their expressed wishes and feelings will cause the children significant emotional harm, especially for A who is more vulnerable; and

• though there was the need to look at the children’s long-term welfare and not short-term problems, the long-term impact on the children of removal on A of feeling like the justice system did not listen to her, could not be underestimated.

There were other factors too that weighed against removal of the children from M including separation from siblings, worrying about M and each other, disruption caused from removal and then moving again if Aunt P’s assessment was positive and the practical arrangements of travelling to and from school and contact.

These factors were then weighed against the identified risks if the children were not removed:

• domestic abuse
• failure to put the children’s needs first, including poor school attendance
• drugs and alcohol misuse
• poor mental health
• failure to make meaningful changes
• criminal offending of the parents.

Comment

On the face of it, the concerns being relied upon by the LA and the Guardian are very serious and point towards removal. However, the Judge went through the risks and asked himself whether the risks could be managed or mitigated. He concluded that they could be, and this meant that removal was not “necessary for the children’s immediate safety.” The Judge decided that the most serious, immediate risk to the children was the significant harm that would be caused by ignoring their wishes and feelings.

This does not mean, though, that a Judge’s decision will always align with an older child’s wishes and feelings, nor that in every case there would be a risk of significant harm from going against an older child’s wishes and feelings. Every case is fact specific. For A, B and C, the Judge concluded that “there would be much greater risks for the children’s emotional welfare removing them at this stage”. Their wishes and feelings weighed very heavily in the balance.

A particularly unusual feature in this case was the fact that the LA’s own plan only two months before the hearing was that the children should remain at home with M. Therefore, the LA themselves must have been saying at that stage that the risks could be managed. It was M’s positive drug test result that changed things, but the Judge thought that risk could still be managed. I am not sure that the result would have been the same had then LA’s plan always been that the children should be removed, and M’s parenting assessment had been negative because that would have added a lot more risk on the other side of the balancing exercise.

As a side note, I would also like to give a shout out to the Judge for the format of his judgment. After setting out all the background, rather than jumping straight into setting out the law, the evidence, the submissions, and the decision the usual way, the Judge instead set out a short summary of his decision, in plain English. This is a welcome change particularly in a case where A would be waiting anxiously to know what happened and why. Judgments can be tricky to follow for lawyers, let alone children. The Judge’s summary was:

I have decided not to make final orders for any of the children at this stage.

The assessment of Aunt P should be completed so that all available options are before the court.

I consider that in the short term the risks to the children of staying with their mother are not as great as the risks if they are removed.  

I do not consider that the children’s immediate safety means they have to be removed now.

In particular I am worried about the impact on the children emotionally of being separated not only from their mother but also each other and the practical consequences in terms of schooling and contact.

I consider that the short-term risks are manageable with a good deal of support (which I identify at the end of this judgment) and a clear understanding by M that if she doesn’t work with the local authority and support services and, most importantly, carries on using drugs, then the children may have to be removed.

You can read the full judgment here and we will link to the final judgment if and when published

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Feature Pic: Swing by Michael Kappel at Flickr with thanks