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Comment and Analysis Masthead

Legal decisions and social work

Munby J 146x219The President of the Family Division, Sir James Munby, retires this month. Naomi De Silva looks at how his rulings have affected social work.

Sir James Munby, the outgoing President of the Family Division retires in July 2018, is known as a fearless Judge and an advocate for change. In this article we take a look at some of his Judgments from the last decade that have had a significant impact on social care; often demanding more rigour in, and sometimes even changing, social work practice.

Who knows how the outcome of CN & GN will affect practice and the application of resources in the future?

Re B-S (Children)(2013) EWCA 1146 – proper, well thought out care planning

This case concerned an appeal made by a mother against the refusal to grant her leave to oppose adoption of her two children.

The appeal was dismissed, and Sir James Munby spent time analysing the law in light of the case of Re B (A Child) [2013] UKSC 33. His judgment provided local authorities with guidance on how to approach permanency planning when the care plan is one of adoption. 

Following this judgment an updated Social Work Evidence Template (SWET) endorsed by Munby was launched in 2014 to assist social workers with improving the quality of their analysis.

Take a look at the template to see how detailed and carefully thought out the planning process is expected to be.

Re D (A Child)(No.2)) [2015] EWFC 2 - “unconscionable” funding challenges for parents with learning difficulties

The issue in the case was whether Child D should live with his parents, or, if the parents were unable to care for him, live with family members or adopted outside of the family.

There had been enormous difficulties in respect of legal aid applications, exacerbated by the parents’ significant learning difficulties and only really resolved after considerable pro bono support form lawyers.

The issue of funding and legal representation was eventually resolved by the Legal Aid Agency after huge delay. There was a 10 month delay between the child being taken into care and a final hearing taking place, and this was because of the funding issues. Munby described this as “unconscionable”. The President did endorse guidance set out by Baker J in Re DE (A Child) [2014] EWFC 6 paragraph 49, which introduced safeguards to assist parents who were facing the removal of children in their care under a care order.

Re A (Child A)(2015) EWFC 11 – guard against social engineering

Child A was born whilst his mother was serving a prison sentence. No family members were deemed suitable to care for the baby by the local authority and Child A was taken into foster care. The local authority issued proceedings 8 months later.

The local authority sought care and placement orders which were both dismissed by Sir James Munby. He described the local authority’s case as, “tottering edifice built on inadequate foundations.”

He used this case to stress the legal principles that should be applied by local authorities when establishing their case. This was helpfully summarised by Lord Justice Aikens in Re J (A Child) [2015] EWCA Civ 22 Crucially – for those also dealing with Failure to Remove and Human Rights Act damages claims in this arena, the court said

“…It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child's welfare. The court must guard against "social engineering".

Re X (A Child) (No 3) [2017] EWHC 2036 (Fam) – when multi-disciplinary service fail

This case famous amongst, and sadly familiar to, many family lawyers and practitioners, involved a 16 year old (Child X) who had been detained in a secure unit. Child X was set to be released in the coming months. Child X had made multiple attempts to take her own her life. She was deemed by staff a danger to herself. The secure unit in which child X was residing was not deemed adequate to provide the care that she required.

A sentence from the case made the headlines: “If, when in eleven days’ time she is released from ZX, we, the system, society, the State, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.”

The case highlighted the strain on current provision throughout the country for clinical, residential and support services needed by children and young people and was raised at the highest levels within government.

Sir James Munby used this case to remind every public body involved with Child X that they had positive obligations under Article 2 of the European Convention on Human Rights and to achieve an appropriate resolution for X.

Naomi De Silva is a solicitor at Browne Jacobson. She can be contacted on 0330 045 2336 or This email address is being protected from spambots. You need JavaScript enabled to view it..

 

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