Proceedings were initially issued in the private law sphere, but care proceedings followed as a result of the children being made subject to Child Protection plans, under the category of emotional abuse. The Local Authority were “concerned about the mother’s oppositional and controlling behaviour and her refusal to engage with the plans”. There was particular disagreement between the parties over the children’s schooling, therapy and work with professionals.
Having considered matters, HHJ Tolson KC decided to make a shared care order, a 12-month supervision order, a specific issue order and reserved any future applications before himself (declining to make an order under section 91(14)). The reasoning behind the specific issue order was to allow the father to override the mother’s views and make decisions in relation to the school, therapy and professional involvement. HHJ Tolson’s reasoning was:
“[This] issue concerns the exercise of parental responsibility as between the father and the mother. The immediate issue is schooling. My view, I regret to say, is that at the present time the mother largely prevents herself from seeing the ‘wood’ of the children’s well-being for the ‘tree’ of her interactions with the father. In other words I do not currently trust her to put the children’s interests first whenever there is a dispute with the father. I do trust the father to place the children first.”
Such decision was appealed by the mother.
In providing the lead judgment, Jackson LJ reiterated the statutory framework surrounding parental responsibility and section 8 orders. Jackson LJ stated:
“By its clear terms, the Act provides the court with the broadest and most flexible powers to make welfare decisions. The powers, which are themselves a welfare checklist factor, can be used individually or in combination. No two cases are the same and, where orders are needed, judges should use the powers that Parliament has given them in the way that they think best meets the needs of the case”.
However, making an order to deprive a parent of decision-making powers, should only be made in extreme cases. The court stated:
“It is one thing to interfere with a parent’s ability to make an individual decision, and another to deprive them of decision-making power more generally. Where a conventional order can be made, it may be disproportionate to go further. In other cases, nothing less will be adequate to protect the welfare of the child”.
In consideration of whether the remedy of a specific issue order was open to the Judge, Jackson LJ highlighted four key reasons:
- The specific issue order was unlikely to be effective and invited a difference in interpretation.
- The issues of residence and schooling were integrally connected, and the court was obliged to deal with them both. The issue of schooling required “immediate resolution, failing which the new carer arrangements were bound to be overshadowed by parental disagreement from the very outset.”
- The evidential basis for the order about school choices was not apparent.
- The order was unnecessary and disproportionate.
Accordingly, the specific issue order was set aside by the court and remitted back to consider the schooling issue and whether any other orders should be made.
