With the ever increasing stress on robust case management, the Court of Appeal has issued a timely corrective in the case of Re P  EWCA Civ 888.
The case had its origin in allegations that parents had assaulted their small baby. The Local Authority brought care proceedings. The family were Polish and the parents put forward the grandparents in Poland as alternative carers for their baby. However, at a preliminary hearing in Liverpool, HHJ Dodds made it plain (in the words of Arden LJ) that he had set his face against the placement of the child outside England and Wales (in robust terms).
This was against the spirit of modern case law concerning children from other EU countries – especially Re E (in which Martin Downs appeared for the Appellant).
At a subsequent hearing many months later, he had made Care and Placement Orders.
The Court of Appeal found that the Local Authority had not complied with its positive obligations under Article 8 to establish if there was the possibility of a placement within the wider family in Poland. Arden LJ found that the Judge had given insufficient weight to the Convention jurisprudence. She stressed the significance of the Judgment of the Grand Chamber of the European Court of Human Rights in TP and KM v the United Kingdom (Application No. 28945/95) at paragraph  in the context of Article 8 and the margin of appreciation:
“71. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, the Johansen v Norway judgment of 7 August 1996, Reports 1996 III, p. 1003, § 64).”
The Court of Appeal granted the appeal despite the fact that it was grossly out of time – because of the profound consequences of the Judge’s preliminary view.
Martin Downs was instructed by Ison Harrison of Leeds with the assistance of the specialist Brussels IIR Consultant, Dorota Beange.