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Public law children case law update

Chris Wells analyses two important rulings for childcare lawyers that cover assessment of birth families, and interim separation.

Application by a Local Authority under Part 18 FPR 2010

Re F (Assessment of Birth Family) [2021] EWFC 31 (12 April 2021)


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The mother was adopted in by Mr M and Ms N in 2008, when she was six years old. In November 2017 the adoptive placement broke down and the mother was accommodated under section 20. The mother had made contact with her birth family, and stayed with them for a short period in 2019.

In January 2020 the mother had a baby (F). Two months later she took F to see her birth family, during which visit F fell out of the pram, fractured her skull, and neither the mother nor birth family sought timely medical attention. Professionals advised the mother not to visit her birth family again.

Following F’s exposure to a variety of risks, she was accommodated in September 2020. Public law proceedings were issued.

Following six months in foster care, the local authority (LA) were seeking to formulate a plan of rehabilitation.


The LA were exploring contingency plans and issued a Part 18 application in order for the court “… to determine whether the local authority should elicit the mother’s birth family’s views as to the plans for F’s future and if relevant, assess them to ensure that there are no gaps in the evidence and that it can tick the “nothing else will do” box”.


The LA should not embark on any assessment of the birth family.

Mother’s birth family are her “original” family (as per ACA 2002) but not her current “family”, nor are they her “relatives” as those terms are used in Part III of the Children Act 1989. Their status is therefore different from that of extended or wider family discussed in the case law.

The birth family only had a short amount of time with the mother and F (culminating in the head injury incident) which fell “a long way short” of acquiring Article 8 rights, which are “not established on the basis of biological kinship alone”.

Even if they did fall within the definition of “family”, this does not place an obligation on the LA to inform, consult, assess or otherwise consider them in the circumstances (see paragraph 21-23).

The court considered the evidence about the birth family and determined that this pointed away from them as being realistic options (paragraph 30).

It is important to note the decision turns on the facts of the case. Paragraph 32 makes clear that there may be other circumstances where birth family should be assessed (for example where a parent in care proceedings had been adopted, but then successfully reunited with birth family).

An appeal which resulted in the interim placement of a child in foster care

Re P (a Child) (Interim Separation) [2021] EWCA Civ 499 (6 April 2021)


The child (C ) was born in August 2020 and immediately made subject of an interim care order, and placed in a mother and baby foster placement. This quickly broke down and C was placed alone in foster care. C and the mother were placed in a residential unit in October 2020.

The 12 week parenting assessment by the unit, completed on 11 January 2021, noted that the level of prompting had in fact increased rather than reduced, and that the mother had displayed verbally threatening behaviour requiring staff to remove C from her on occasion. The assessment did not recommend progression to the community.

The mother’s partner moved into the unit on 22 March 2021 to see if he could compensate for the mother’s deficits.

Sadly there were further substantial problems (paragraph 5), resulting in the local authority making an application to remove C from his mother and place him in foster care (supported by the unit, the Independent reviewing officer, and the Guardian). The LA prepared a position statement discounting all other options.

The court’s decision is set out at paragraph 9. The judge did not approve the LA’s plan of removal, raising doubts about the residential unit, and indicating insufficient evidence was available to make the decision in an informed way.

The local authority appealed.

Lord Justice Peter Jackson allowed the appeal:

  • It was understandable that the judge should have been concerned about the importance of C’s placement with his mother and the long-term consequences of him being separated from her.
  • However, it was necessary to take a practical view of the situation.
  • There was no proper basis on which the court could doubt the assessment of professionals who had been monitoring the situation for over five months.
  • The alternatives to separation were explored (paragraph 14). Alternative residential placement, even if appropriate, would take time to arrange. 24-hour CCTV monitoring in the mother’s own flat would be even less protection than a residential unit. Full-time live-in supervision at the mother’s flat would be completely exceptional, but even if appropri-ate in principle, would take time to implement.
  • The judge approached the matter as if alternatives to separation could be put in place immediately and in that respect he fell into error.

Chris Wells is a barrister at St Mary’s Family Law Chambers. Contact This email address is being protected from spambots. You need JavaScript enabled to view it.

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