Hodge Jones & Allen

Care proceedings case report

12 February 2009

An important case about Care and Adoption proceedings

RE W (Children) subnom WEBSTER v NORFOLK COUNTY COUNCIL (2009)

Court of Appeal

Link to full report in BAILII

Background

Care proceedings were brought by Norfolk County Council against the Parents of 3 children A, B and C, in 2004. It was held that B had suffered 6 fractures and these were viewed as non-accidental injuries. The only possible perpetrators of such injuries to the child were the Parents. Full adoption orders were made for all three children. The parents denied harming their children and claimed to be the victims of a miscarriage of justice.

When the mother fell pregnant in 2005, the parents fled to Ireland as they feared the local authority would commence Care proceedings against them. The mother subsequently gave birth to the child, on 26 May 2006 in Ireland. The parents returned to England and Norfolk County Council commenced Care proceedings for the newborn child on 8 June that year with an Interim Care Order (ICO) being made by the Court on 10 June. The child and his parents were moved to a residential unit by the local authority where they were subject to intensive assessment. The residential unit’s final report stipulated that the parents had exhibited good basic care skills. However, their willingness to work openly with professionals was questioned.

A psychological report of the parents highlighted that the parents had positive attributes which would allow them, with the support of professionals, to care for the child successfully. Further, a psychiatric report was filed advising that the parents had exhibited no diagnosable psychiatric or personality disorder that would give rise to a future risk.

The local authority therefore produced an interim care plan that the child should return home in the care of the parents with community based assessment. The Court endorsed the interim care plan and prior to the hearing was also moved to consider media coverage of this particular case.

The parents had sought a good deal of media coverage as they continued to protest their innocence. They applied to the Court with the BBC and Mail on Sunday to open the necessarily private Court process with regard to Care proceedings into the public domain for this case. The Court reviewed this application in light of their’ argument that any greater restraint then they had requested, would be a significant and disproportionate interference with their rights. Four strong factors leant further weight to this approach given the assertions of a possible miscarriage of justice, the parents’ own desire for media coverage, the extensive publicity that had already been received by that stage and the need for the truth to emerge in a way so as to command public confidence. The Court felt the risks to the child were greatly speculative and the restraints sought by the guardian went far beyond those necessary to protect the rights of the child which would lead to a disproportionate infringement of the rights of the applicants. The Court set aside the privacy of the court in this instance and permitted the media to attend.

The Appeal Proceedings

During the course of the latest Court proceedings in 2007, relating to the youngest child, medical evidence was submitted from several experts highlighting that the injuries sustained by B, which lead to the initial care proceedings in 2004, had not in fact resulted from violence. They asserted instead that the injuries exhibited by B were actually the result of Scurvy; a deficiency of Vitamin C. This condition is very rare in modern times.

The medical findings led the parents to apply for the right to appeal, out of time, for the Care order in 2004, and the subsequent adoption orders of 2005 to be overturned. Norfolk County Council responded to the appeal against the adoption orders by arguing that the parents had not been parties to the adoption proceedings in 2005 and were therefore not entitled to apply for them to be overturned.

The Court held that the local authority’s argument was incorrect. The parents of the children clearly had a sufficient interest in the adoption proceedings to permit their application for the orders to be overturned. The Court thus turned its focus to the question in hand; whether it has the power to overturn the adoption orders some three years after they were made.

Unfortunately, the Court held that it was unable to set the adoption orders aside. It had to balance the public policy considerations on adoption, that if made regularly and validly adoptions could not be overturned save for the most highly exceptional and specific of circumstances, against the facts of this case, namely that the parents had been the victims of a miscarriage of justice. The Court felt that its hands were tied by the narrow wording of statute that had been supported by subsequent case law. There is minimal discretion for the Courts to act to overturn adoption orders under any circumstances.

The Court applied the decision in Re B (Adoption: Setting Aside)(1995) where a 35 year old man had applied for an adoption order made in 1959 under which he was adopted by orthodox Jewish parents under the belief he was Jewish and raised him accordingly. His parents were in fact Catholic and Muslim and the man was now seeking the order to be overturned on this mistaken belief as he planned to join his natural father in Kuwait. The Court dismissed the application stating that the law for overturning adoption was narrow as adoption orders are final and for life. To allow the facts of this case to warrant the setting aside of the adoption order would undermine this position.

The Court also considered the decisions made in Re M (Minor)(Adoptions)(1990), where an adoption order was successfully overturned on the grounds of mistake as the father of 2 children consented to them being adopted by their natural mother’s new husband without being informed that the natural mother had cancer, from which she subsequently died and her new husband was unable to care for the children on his own; and Re K (Adoption & Wardship)(1996) where a Bosnian child, fostered in England as her parents were understood to have died in the civil war, was permitted to stay with her foster parents, despite the wishes of a guardian appointed by the Bosnian Court and the child’s Grandfather and Aunt seeking her return to her natural family in Bosnia. However, the child was to remain a ward of the Court and the natural family were permitted defined Contact. An earlier decision by a County Court to make an adoption order was overturned as it had failed to comply with the rules of adoption in this instance.

Despite the Court overturning the adoption order in Re M, it was very quick to underline that the case was not to be seen as a precedent for setting aside orders in related cases as the case was seen as wholly exceptional. The County Court in Re K had failed to apply the law correctly and so the adoption order was not a valid one. This allowed the Court of Appeal to overturn the decision. However, these cases underline very clearly the legal position that an adoption will only be overturned in ‘wholly exceptional’ cases or where there are specific grounds for the Court to find the adoption order is invalid. A contrast was therefore drawn between these past cases and the current application.

In the subject case, the Court found no grounds to question the validity of the adoption orders made in 2005, nor were the facts held to be wholly exceptional so as to warrant the orders to be overturned. The parents were permitted the opportunity at first instance to obtain second opinion medical evidence which could have been used at trial or even led to a new trial with the previous medical evidence being set aside under the case of Ladd v Marshall (1954). If the adoption orders could not be challenged, the Court held there would be no point in reopening any of the decisions that the applicants wished to challenge.

In order to avoid this situation arising again, the system provides for a remedy by empowering the litigant to instruct a second expert, though it was noted that this required a diligent lawyers and determined parties. The Court warned that the reasons that could have caused injury to a child should not be dismissed, purely because they are rare, uncommon or ‘highly unusual’. In a case where a child exhibited a medical history with a demonstrably rare feature, that feature and its impact on the causation of any injuries should be the focus of specialist expert appraisal at an early opportunity.

Toby Hales, Partner in the Family team at Hodge Jones & Allen comments:

"This case again underlines the importance of making the correct decisions under the most difficult of circumstances and highlights that it is essential for parties in Care or Adoption proceedings to make the best possible evidence available for the Court."