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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W (A Child) [2014] EWCA Civ 772 (11 June 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/772.html Cite as: [2014] EWCA Civ 772 |
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ON APPEAL FROM the Birmingham District Registry of the Family Division of the High Court of Justice
His Honour Judge Cardinal sitting as a judge of the High Court
BM09P09235
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RYDER
and
LORD JUSTICE UNDERHILL
____________________
In the Matter of W (A Child) |
____________________
Mr Alistair MacDonald QC with Ms Rosalyn Carter (instructed by Blair Allison Solicitors) for the 1st Respondent father
Mr Paul Lopez (instructed by Carvill Johnson) for the 2nd Respondent child
Mr Craig Jeakings (instructed by Solihull MBC) for the Intervenors (Solihull MBC)
Hearing date: 12 February 2014
____________________
Crown Copyright ©
Lord Justice Ryder:
1. (i) had wrongly suggested that the child did not want to see her father, and was frightened by him;
2. (ii) had knowingly sought to prevent the child from having a relationship with her father by putting pressure on her about seeing him, and by putting obstacles in the way of contact;
3. (iii) had deliberately and wrongly sought to exclude father from school events and being involved in the child's life;
4. (iv) believed that the father was involved in the child's abuse in London (i.e. the abuse perpetrated by the paternal grandfather), and had informed others of her belief;
5. (v) misled the court by saying that it was the child rather than herself who struggled with the grandfather's abuse;
6. (vi) deliberately put the worst interpretation on events to place obstacles in the way of the father's contact;
7. (vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother's behest despite being a daughter who delights in seeing her father);
8. (viii) had told the child about alleged domestic violence on the parties' separation to influence the child against her father and to cause her to make similar allegations;
9. (ix) is out of control, believing her own propaganda and convincing the child of it: creating a situation that is deeply concerning - the child was and is subject to influences which she should not be;
10. (x) is worryingly obsessed by the abuse of the child by her paternal grandfather to the extent that she had unfairly taken an adverse view of the father and worked against his contact at every opportunity, save when she could police it herself. Her reluctance to let him develop a natural relationship with his daughter was plain for all to see; and
11. (xi) had encouraged the child to have an unhealthy attitude towards her father, to make untrue allegations, to know more about sexual matters and about the case than was good for her with the consequence that her emotional and psychological progress had been damaged.
i) There was no reason sufficient to justify removal i.e. having regard to the test to be applied, there was no risk to the child's safety that required immediate separation;ii) Removal was disproportionate having regard to:
a) the nature and extent of the harm described by the judgeb) the harm that would likely be caused to the child by the removalc) less draconian steps including the enforcement of contact and/or interim care, supervision or family assistance orders which could have been used as an alternative and which would have permitted the child to remain in the care of her mother;iii) The child's welfare was being safeguarded by the mother who had met her needs and provided better than good enough care throughout her life and the judge failed to analyse that by reference to the welfare checklist in section 1(3) CA 1989;
iv) The mother was not permitted to pursue alternative carers or the assessment of carers before the step of removal was taken;
v) The mother had no effective notice of the judge's intention to remove her child into foster care.
12. "[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child's] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.
12. [31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home."
13. "separation is only to be ordered if the child's safety demands immediate separation [...] at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection"
Lord Justice Underhill
Lord Justice Laws