MOTHERS with violent partners frequently have to decide between those partners and their children. Such was the mother's dilemma in EH v. London Borough of Greenwich, AA and A (Children) [2010] EWCA Civ 344, [2010] 2 F.L.R. 661. If they choose their children, how much assistance are those mothers entitled to expect from the state in breaking clear of their abusive relationships? “Quite a lot” is the answer given by the Court of Appeal, invoking the ethos of English domestic legislation and human rights commitments.

Greenwich instituted care proceedings in respect of two young children when one was found to have a spiral fracture to her arm: an injury which, at a fact-finding hearing, the court found the father had inflicted and the mother had subsequently lied about, and neither had sought treatment for as quickly as they should. However, as care proceedings progressed, there were positive expert assessments of the mother and evidence of good parenting by her, as well as of her attempts to leave the father. Notwithstanding these positive features, the local authority pushed on with its care plan for separation of the children from the parents and adoption. No therapeutic assistance was given to the mother to enable her to come to terms with separation from her long-term partner. Instead, she was left in no doubt that the children would be placed for adoption even if she left the father.

Shortly before the welfare hearing, the guardian and two experts recommended return of the children to their mother's care. Against this, however, the local authority led evidence that her relationship with the father was continuing, and that she had lied about meeting him, and on this basis argued it would not be safe for her to care for the children. The judge accepted the local authority's evidence, and their arguments, and on this account decided that care and placement orders should be made.

The Court of Appeal set aside these orders and directed a rehearing. One of their reasons was that the judge had misdirected himself on the weight to be accorded to the disputed identification evidence in the case, because he had failed to give himself a “Turnbull direction” (R v. Turnbull and Another [1977] 3 W.L.R. 445). But this aside, the judge had made a fundamental error, it said, in treating his findings of fact about whether or not the mother had lied about the relationship as determinative of the children's welfare. Even if the mother had lied about continuing to meet the father, this might or might not have meant that she could never work honestly with professionals. Furthermore, when making a draconian order such as a placement order, it was incumbent on the judge explicitly to have regard to every factor in the welfare checklist in section 1(3) of the Children Act 1989 and section 1(4) of the Adoption and Children Act 2002 and to give full expression to the terms of Article 8 of the ECHR. It should be clearly demonstrated that the order was necessary and proportionate. In this case, insufficient consideration was given to whether additional work could have been undertaken with the mother, given her qualities as a parent and the lack of support from the authority, to give her a fair opportunity to demonstrate that her commitment to her children was greater than her commitment to her relationship with the father. In short, there was insufficient weight attached to the adequacy of the efforts made to achieve rehabilitation of the children with their mother.

The case is noteworthy for the scathing attack on the practice of this authority by Wall L.J. In his view “[w]hat social workers do not appear to understand is that the public perception of their role in care proceedings is not a happy one. They are perceived by many as the arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process.” [at 109].

This decision is a welcome reminder to local authorities of the fundamental ethos of both the Children Act and the ECHR. This is that care is, first and foremost, a temporary expedient. The primary obligation on the state is to seek reunification of children with parents where it is safe to do so (see particularly the seminal decision of the ECtHR in Johansen v. Norway (1997) 23 E.H.R.R. 33). There is widespread understanding of the negative obligations of the state under the Convention; for example not to remove children from their parents unless their safety demands immediate separation (Re L-A (Care: Chronic Neglect) [2010] 1 F.L.R. 80); not to invoke emergency remedies if it is not a true emergency (Re X (Emergency Protection Orders) [2006] 2 F.L.R. 701), and not to seek care orders if some less draconian order, such as a supervision order, will adequately protect the child (Re C and B (Care Order: Future Harm) [2001] 1 F.L.R. 611). These are classic examples of what is meant by proportionality. But what is perhaps less well understood is the reach of the state's positive obligations in child protection and the essential duty to work towards reunification (see especially K and T v. Finland (2000) 31 E.H.R.R. 18). And it should be noted that the margin of appreciation allowed to states on the question of reunification efforts and maintaining contact between children in care and their birth families is narrower than that allowed to them when taking the initial decision to seek removal of the child (see especially S and G v. Italy [2000] 2 F.L.R. 771). In other words, the whole question of reunification efforts, while not an absolute duty and qualified by welfare considerations, is taken very seriously indeed under the Convention. The risk of violating the rights of parent and child through inaction are correspondingly high.

The value of this decision is that it makes it plain that there are wider obligations implicit in the general duty, and that one of these is to offer therapeutic assistance, at an early stage, to the mothers of violent partners. This is no small matter given the prevalence of domestic violence as a factor in care proceedings and the amendment of the Children Act to include within the definition of harm “impairment of health or development including…impairment suffered from seeing or hearing the ill-treatment of another” (section 31(9)).

There was a fascinating postscript to the Court of Appeal's decision. When the fresh hearing took place, it transpired that the local authority's suspicions of a continuing relationship were after all well-founded and care and placement orders were made a second time. The Greenwich social workers may well have felt, in the words of Wall L.J., “damned if they do and damned if they do not”. We shall never know of course whether the mother would have been free of her violent partner if she had received more help.