On 3rd October Christopher Naish represented the mother and Christian Gape represented the Guardian in an appeal in the Court of Appeal (Arden, Ryder and Macur LJJ) in the case of RE Y (Children).
This was another appeal following the Supreme Court case of RE B  UKSC 33 and the Court of Appeal case of RE B-S (Children)  EWCA Civ 1146. In RE B-S the Court of Appeal held that when making care orders based on adoption care plans there was a need (a) for local authorities to provide clear evidence of the pros and cons of the different options available to the Court; and (b) for carefully reasoned judgments addressing the pros and cons and explaining why adoption was the only possible outcome.
In RE Y the principal ground of appeal was that neither the local authority nor the judge had properly identified what the risks were of leaving the children in the mother’s care. The evidence had instead focussed on the mother’s dishonesty.
The Court of Appeal allowed the mother’s appeal against care and placement orders and directed a rehearing holding that (a) the local authority had failed to provide adequate evidence and
(b) the judge had failed to give adequate reasons.
In the course of the argument, the Court commented that the case of RE B-S was likely to result in more appeals being allowed in the near future; and that the Court was shortly to give guidance on what would be required in the preparation of care plans in order to meet the requirements of RE B-S.
In giving judgment Macur LJ said that :
(i) The judge had not been assisted by the failure of the local authority to provide adequate evidence; and
(ii) The case had been hijacked by too much concentration on the mother’s dishonesty. A parent’s dishonesty cannot be the sole reason for removing a child.
This case establishes that dishonesty by itself cannot be a basis for separating a parent and child. Dishonesty is only relevant when it means that identified risks cannot safely be managed.