Taking of children into care
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Child care proceedings 1. Emergency protection orders 92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order. 2. Care orders and interim care orders 93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied: “(a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to– (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.” 94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances. 95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks. 96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child. 97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to; “(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question.” 3. Placement orders 98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless: “(a) the child is subject to a care order, (b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or (c) the child has no parent or guardian.” 99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides: “(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that– (a) the parent or guardian cannot be found or is incapable of giving consent, or (b) the welfare of the child requires the consent to be dispensed with.” 100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child. 101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order. 102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that: “Before making a placement order the court must– (a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and (b) invite the parties to the proceedings to comment on those arrangements.” 103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers: “(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding), (b) the child’s particular needs, (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, (d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant, (e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including– (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.” 104. Section 1(6) provides: “The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.” 4. Adoption orders 105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order. B. Clarifications of aspects of a judgment 106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows: “In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ...; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.” 107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added: “I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy. This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.” C. The statutory checklists and Article 8 in childcare cases 108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above). 109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted: “61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.” 110. As to Article 8, she continued: “64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘ removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.” 111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued: “69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.” 112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route. 113. Lord Justice Wall noted: “95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions. 96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.” 114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing: “98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed. 99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut. 100. In my judgment, neither defence meets the criticism ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 115. The applicant complained that the domestic courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making a placement order violated her right to respect for her family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 116. The Government contested that argument. A. Admissibility 117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions a. The applicant 118. The applicant argued that in failing to grant an assessment of her as a sole parent and in failing to have regard to all relevant factors before making a care and placement order in respect of K. the domestic authorities violated her right to respect for her family life. She emphasised that the Family Proceedings Court had heard live evidence from the parties and had ordered that an assessment be carried out. In overturning this decision, the County Court did not have the benefit of hearing live evidence. It had before it a typed note of evidence before the Family Proceedings Court prepared by the clerk (see paragraph 63 above). However, this note was so inadequate as to give rise to confusion on key pieces of evidence regarding whether K. should remain in foster care or be placed for adoption. In deciding that there should be no assessment of the applicant, the County Court made no reference to her Article 8 rights. 119. The applicant also argued that the making of the placement order was fundamentally flawed as the correct procedure had not been complied with. She considered that the placement proceedings had been informally added to the proceedings in the Family Proceedings Court and that, as a consequence, important procedural safeguards had not been observed. 120. She further contended that before making a placement order, the court was obliged to consider section 1 of the 2002 Act (see paragraphs 103-104 above). The Family Proceedings Court did not do so because it decided to order that a section 38(6) assessment be carried out and so was not required to examine the request that a placement order be made. In overturning that decision, the County Court judge focussed the majority of his judgment on whether the Family Proceedings Court was right to order that an assessment be conducted. Having concluded that it was not, the judge then simply made a placement order (see paragraph 82 above). He did not set out his reasons with reference to the criteria stipulated in section 1(4) of the 2002 Act (see paragraph 103 above). 121. The Court of Appeal did not rectify the errors made by the lower court. It indicated that any complaint about the peremptory nature of the order should have been made to the County Court judge (see paragraph 86 above). In particular, it did not address the appeal ground regarding consideration of the section 1(4) criteria, save to say that omissions should have been brought to the attention of the judge (see paragraph 87 above). 122. The applicant disputed that any omissions could be remedied by an application for contact or for revocation of the placement order. She highlighted that K. had now been placed with a prospective adopter and that the court had quite properly given precedence to the new bonds that had started to form in that placement. 123. The applicant concluded that the placement order had allowed K. to be placed with a prospective adopter, thus leading to the severing of links with his natural family, without a proper and reasoned explanation being provided. There had therefore been a violation of Article 8 of the Convention. b. The Government 124. The Government considered that the decisions taken in the case were proportionate and fell within the State’s margin of appreciation given that, at each stage, all relevant circumstances were taken into account and cogent reasons were given for the decision reached. They emphasised that the domestic courts had had direct contact with the persons concerned and that it was not the role of this Court to substitute itself for the domestic authorities. 125. The Government disputed the applicant’s contention that the correct procedures had not been followed prior to the making of the care and placement order by the County Court. In particular, it was clear from the evidence before the Court that the applicant was well aware before the hearing in the Family Proceedings Court that the local authority was seeking a care and placement order. 126. The refusal of the County Court judge to allow an assessment of the applicant as a sole carer was based on a thorough analysis of the expert evidence, which included evidence of K.’s own wishes and feelings. The decision was founded on the judge’s conclusion that the applicant’s separation from P.C. was unlikely to be maintained; that a further assessment of the mother while K. remained in local authority care could not provide the evidence required to displace expert conclusions that the applicant lacked the parenting skills necessary to care for the child; and that any delay would therefore not be in K.’s best interests. 127. The Government further contended that the County Court judge did have regard to all relevant considerations before deciding to make the placement order. In particular, he had before him and took into account evidence as to K.’s wishes and feelings and gave extensive and cogent reasons for his conclusion that a placement order should be made. The Court of Appeal also gave proper reasons for dismissing the applicant’s appeal. 128. The Government made a number of submissions in support of their position. First, they contended that the local authority, D.I. and the guardian had all made efforts to ascertain and assess K.’s wishes and feelings about whether he should return to his parents. In each case he had indicated that although he wished to see his parents he would be scared unless social services were present. Second, the County Court judge had concluded that the separation of the applicant and P.C. was not genuine; in these circumstances there was no point seeking K.’s views as to the possibility of return to his mother alone. Third, there was nothing on the face of the County Court judgment to indicate that the judge had left K.’s wishes out of account in reaching its decision. Fourth, there was nothing to suggest that the decision would have been different had the applicant submitted that he lacked sufficient information to make a placement order. Fifth, the applicant could have, had she so wished, made that submission by taking advantage of the judge’s invitation (see paragraph 82 above). Sixth, considering the evidence as a whole, it was clear that each decision had been taken because on the basis of expert evidence the courts considered that returning K. either to his parents or to the applicant alone would cause harm and would not be in his best interests. Finally, the Government pointed out that before any final adoption order was made the court would be obliged again to consider the matters set out in section 1 of the 2002 Act. They further noted that the applicant could have applied, with the leave of the court, to have the placement order revoked at any time before a placement was made. 129. The Government therefore invited the Court to find that there had been no violation of Article 8 of the Convention. 2. The Court’s assessment 130. There is no doubt that the decision to refuse a further assessment and to make a care and placement order in the present case constituted a serious interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention. It must therefore be determined whether the interference was justified under Article 8 § 2, namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society. 131. As to the lawfulness of the actions of the domestic courts, the Court notes that the applicant, in her submissions, made reference to alleged failures on the part of the authorities to comply with the relevant procedures for the making of a placement order (see paragraph 119 above). However, the Court is satisfied, on the basis of the evidence before it, that the correct procedures set out in the applicable legislation were followed and that the County Court judge was entitled to make a placement order in the case. The applicant also complained that the domestic courts did not have regard to section 1(4) of the 2002 Act when making the placement order (see paragraph 120 above). While the Court does not rule out that such a complaint could give rise to the question whether the measure was “in accordance with the law” within the meaning of Article 8 § 2, it observes that the applicant in the present case did not argue that any issue as to the lawfulness, in Article 8 terms, of the measure arose. In the absence of any submissions on the matter the Court is therefore of the view that this complaint is more appropriately considered in the context of the necessity and proportionality of the measure. The Court therefore accepts that the actions of the domestic authorities were “in accordance with the law”. 132. It is further not disputed that the measures pursued the legitimate aim of protecting the rights of others, namely those of K. The Court must therefore examine whether the domestic authorities’ actions were necessary in a democratic society. a. General principles 133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March 2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011). 134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). 135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives. 136. The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Further, the national authorities have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K and T., cited above, § 154; A.D. and O.D., cited above, § 83; Neulinger and Shuruk, cited above, § 138; and R. and H., cited above, § 81). However, it must be borne in mind that the decisions taken by the courts in this field are often irreversible, particularly in a case such as the present one where a placement order has been made. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; X v. Croatia, no. 11223/04, § 47, 17 July 2008; and R. and H., cited above, § 76). 137. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit (see K and T., cited above, § 155). The Court has indicated that the authorities enjoy a wide margin of appreciation in 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 the 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, as such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K and T., cited above, § 155; R.K. and A.K., cited above, § 34; and A.D. and O.D., cited above, § 83; R. and H., cited above, § 81). The making of a placement order in respect of a child must be subject to the closest scrutiny. 138. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see Neulinger and Shuruk, cited above, § 139; and R. and H., cited above, § 75). Thus it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child. 139. The need to involve the parents fully in the decision-making process is all the greater where the proceedings may culminate in a child being taken from his biological parents and placed for adoption ( R. and H., cited above, § 76). b. Application of the general principles to the facts of the case 140. The applicant’s complaint comprises two aspects. First, she complains about the refusal of the domestic courts to order an assessment of her as a sole carer, which she contends constituted a disproportionate interference with her Article 8 rights. Second, she complains that the reasons given for making a placement order were inadequate. 141. The Court observes at the outset that the decision as to whether K. should be raised by the applicant or by another family was effectively taken at the stage at which the placement order was made. The possibility of revoking the placement order and the prospect of a future evaluation by reference to the criteria in section 1 of the 2002 Act (see paragraph 103 above) in the context of an application for an adoption order under section 46 of the 2002 Act (see paragraph 105 above) cannot be relied upon as providing any kind of safeguard in the proceedings leading to the making of placement order in respect of K. In particular, once K. was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant’s care (see W. v. the United Kingdom, 8 July 1987, § 62, Series A no. 121; and K and T., cited above, § 155). 142. It is not disputed that the threshold criteria enabling the court to make a placement order – namely that there were reasonable grounds for believing that K. was likely to suffer significant harm because of inadequate care – were met. The immediate question for the domestic courts in the applicant’s case was whether to make such an order or whether to order a further assessment which could result in K. being returned to the applicant’s care. 143. The Court’s starting point is the judgment of the Family Proceedings Court. Although that court did not reach any conclusion as to whether a placement order ought to be made, in its judgment it explained that it accepted the welfare aspects of the Guardian’s report, before indicating that it had reached a different conclusion as a result of the applicant’s late position statement (see paragraph 69 above). It accordingly ordered a further assessment. 144. The County Court subsequently overturned the order of the Family Proceedings Court and made a placement order. The applicant does not dispute that she was advised that the local authority and the guardian were seeking a placement order from the County Court. It is therefore for this Court to assess whether the County Court’s reasons were relevant and sufficient, by reference to the general principles set out above. 145. The Court observes that the County Court judge began by emphasising that any decision to order a further assessment had to be in the best interests of the child (see paragraph 80 above). In identifying K.’s best interests, the judge noted that any further assessment would entail a degree of disruption to K.’s foster placement and a risk of emotional harm should the assessment break down. He considered that the duration of the assessment would be too short to provide sufficient guarantees that the separation of the applicant and P.C. would last (see paragraph 80 above). He reached the conclusion that “the evidence about the mother was clear” and that an assessment of the applicant would never be able to provide evidence that would be sufficient to justify the refusal of a care order, given her shortcomings and the real risk that she would resume her relationship with P.C. Thus the only effect of the decision to order an assessment was to delay and jeopardise the prospect of finding a long-term placement for K (see paragraph 81 above). 146. The judge was clearly of the view that the resumption of the applicant’s relationship with P.C. entailed a risk to K.’s well-being. His conclusion that such resumption was likely and his negative view as to the consequences for K. do not appear to be unreasonable having regard to the history of the case and the various reports prepared in the context of the proceedings, which made frequent reference to P.C.’s controlling nature and the difficulties encountered by the applicant in asserting herself (see paragraphs 29, 30, 39, 44 and 58 above). While, as the Court has explained above, it is in a child’s best interests that his family ties be maintained where possible, it is clear that in K.’s case this was outweighed by the need to ensure his development in a safe and secure environment (see paragraph 134 above). In this regard the Court observes that attempts were made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance (see paragraphs 27 and 33 above). When the applicant indicated that she had separated from P.C., she was given details of domestic violence support that she could access (see paragraph 26 above). It appears that she did not access such support and ultimately reconciled with P.C. on that occasion. The reports prepared by the social worker, the guardian and D.I. highlighted the difficulties encountered in trying to assist the family to address concerns as a result of the parents’ failure to engage with the authorities and, in particular, P.C.’s uncooperative stance (see paragraphs 36-37, 41, 44-45, 47 and 58 above). 147. The Court acknowledges that, in refusing the further assessment and instead making a placement order, the County Court judge did not make express reference to the relevant considerations arising under Article 8 of the Convention (see paragraph 135 above) or to the various factors set out in section 1 of the 1989 Act and section 1 of the 2002 Acts (see paragraph 82 above). However, as outlined above, it is clear that he directed his mind, as required under Article 8 of the Convention, to K.’s best interests and that, in reviewing the applicant’s application for a further assessment, considered whether in the circumstances rehabilitation of K. to his biological family was possible. He concluded that it was not. In reaching that decision he had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian (whose report was based on full consideration of the welfare checklist) and D.I., all of whom identified the various issues at stake (see paragraphs 78-81 above). Further, the Court notes that the applicant was invited by the judge to bring to his notice anything that required his further attention in court (see paragraph 82 above), but that she failed to seek any clarification from him as to the reasons for his decision. 148. It is also of relevance that the applicant was able to seek a further review of her case by the Court of Appeal. In this regard, the Court observes that the Court of Appeal has recognised the need for a careful balancing act to be conducted by reference to section 1 of both the 1989 and 2002 Acts and to Article 8 of the Convention (see paragraphs 109-114 above). It was satisfied in the applicant’s case that the judge had reached a conclusion which was fully merited on the evidence. 149. In the circumstances of the case, the Court considers that the decision to make a placement order did not exceed the margin of appreciation afforded to the respondent State and the reasons for the decision, taking into account the concerns expressed by the judge regarding the applicant’s ability to separate from P.C., were relevant and sufficient. It is further satisfied that the applicant was given every opportunity to present her case and was fully involved in the decision-making process. 150. There has accordingly been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 151. In her written submissions to the Court dated 18 May 2011, the applicant alleged for the first time that there had been a violation of Article 13 as a result of the decision of the Court of Appeal. 152. The Court observes that the judgment of the Court of Appeal was handed down on 24 November 2009. The applicant’s complaint under Article 13 was therefore lodged outside the six-month period stipulated in Article 35 § 1 of the Convention. In any event the Court reiterates that the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K and T., cited above, §§ 198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, 21 January 2011). There is no indication that Court of Appeal would not, in general, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The complaint must accordingly be declared inadmissible pursuant to Article 35 §§ 3 and 4.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the decision to make a placement order had not exceeded the State’s margin of appreciation and that the reasons for the decision had been relevant and sufficient. The applicant had further been given every opportunity to present her case and had been fully involved in the decision-making process. The Court observed in particular that the domestic courts had directed their mind, as required by Article 8 of the Convention, to the child’s best interests, had had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian and the psychologist, all of whom had identified the issues at stake.