DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I am unable to share the views of the majority in this case on the question of the alleged violation of Article 8. To my mind the most unorthodox way in which the placement order was made by the Taunton County Court, and the cavalier way in which the applicant was refused permission to appeal by the Court of Appeal, cumulatively lead to a violation of Article 8. The majority decision, by invoking, as it does in § 149, the concept of the “margin of appreciation”, also raises a serious issue as to the extent to which this Court should defer to the judgments of domestic courts, especially when these do not purport to be in any way dealing with Convention matters.

2. We are here dealing with the placement for adoption not of a new ‑ born or an infant, but of an 8 year-old boy who, up to the age of seven, had lived with his parents, even if in a highly dysfunctional environment. The placement order, as opposed to long-term fostering, may in effect have been the best solution for the boy, but that is entirely beside the point. What had to be assessed here is whether the “important or draconian decision...to part parent and child permanently by means of an adoption order” (to use the expression found in para. 95 of the Court of Appeal’s judgement in EH v. London Borough of Greenwich and Others , referred to in § 109) was supported by cogent reasons emanating from the same decision (in this case, the decision of the County Court). As was stated by this Court in Saviny v. Ukraine (18 December 2008, no. 39948/06), at § 49,

“...notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances...A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made.”

See also §§ 67 and 81 of Kutzner v. Germany (26 February 2002, no. 46544/99), and passim Moser v. Austria (21 September 2006, no. 12643/02) and Kurochkin v. Ukraine (20 May 2010, no. 42276/08). More significantly the Court of Appeal itself has, in EH v. London Borough of Greenwich and Others , already referred to, laid down very stringent requirements as to the contents of a court decision placing children in care or for adoption (see §§ 109 to 114 of the majority decision) – although it must be said that this judgment was delivered on 9 April 2010, that is four months after the applicant was refused leave to appeal (on 24 November 2009). Regrettably the Court, in its majority judgment, has given no weight whatsoever to this April 2010 judgment of the Court of Appeal.

3. Although before the Family Proceedings Court there was both an application for a (full) care order and an application for a placement order, that court in effect dealt only with the former, and then only to the extent of ordering an interim care order with a direction for further assessment. In the judgment of the Family Proceedings Court there is no specific reference to section 1(3) of the Children Act 1989, but there is at least a reference to section 31(2) of the same when that court states:

“Before we make care orders we have to be satisfied that the threshold criteria is met. That is we have to be satisfied that the child has suffered, or is likely to suffer significant harm and that the harm, or the likelihood of harm, is attributable to the care given to him, or likely to be given to him if the orders were not made, not being what is reasonable to expect a parent to give.”

There is no reference whatsoever, whether direct or oblique, to the provisions of the Adoption and Children Act 2002, under which a placement order may be made. The reference to the “welfare checklist” in the part of the Family Proceedings Court judgment quoted in § 69 is clearly a reference to the checklist under the 1989 Act, to wit section 1(3).

4. The local authority and the guardian appealed. Both specifically sought from the County Court a final care order and a placement order. The judgment of the County Court of 16 June 2009 is strange, to put it mildly. After rehearsing all the evidence – including that which was before the first court – in nine typed pages and with sole reference to the making of a care order, that court goes on to say in para. 16 of its judgment:

“However the complaint in the present case is that the justices were wrong not to have made a care order at the conclusion of the hearing because all the evidence to support the making of a care order was present, and because delaying their decision was detrimental to K.’s better interests.”

In para. 17 there is again no reference whatsoever to the 2002 Act. Then, by some sort of side-stepping movement (or convoluted lateral thinking), the last part of para. 18, which is in effect the end of the substantive part of the judgment, cryptically says:

“In reality, the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for K. by way of adoption...In these circumstances the decision of the justices must be categorised as wrong, and must be set aside. The appeal will be allowed. I am satisfied that the conditions for making a care order exist and accordingly I make a placement order, dispensing with the consent of the parents under ss.22(3)(b) and 52 of the Adoption and Children Act 2002.”

This is the first and only reference to a placement order in the County Court’s judgment and the first and only reference to the 2002 Act. There is no reference, specific or otherwise, to the checklist in section 1(4) of the 2002 Act. There is no reference to the rights enjoyed by both parents and children under the Convention, to Article 8 or to any principle of proportionality. Whatever the guardian may have analysed and recommended in her report (§ 53), it was for the judge to apply independently his mind to the relevant and sufficient considerations and to show unequivocally in the judgment that he had done so.

5. The Court of Appeal and the majority judgment of this Court (see § 147) come to the rescue with an act of faith – praestet fides supplementum . Although the decision of the Court of Appeal dismissing permission to appeal characterised the County Court judge’s interim order (referred to in § 77) as having been made “in bizarre form”, the Court of Appeal nonetheless somehow assumes that the judge had at some stage applied his mind properly in considering all the matters mentioned in section 1(4) of the 2002 Act:

“Nor do I think in the end that there is any substance [in the argument] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the appellant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 July [ recte : 6 June].”

The same gratuitous assumptions are made by the Court in § 147.

6. Whatever the failings (if any) of the applicant’s legal team before the County Court, the fact remains that the judgment of that court did not expressly spell out relevant and sufficient reasons for the measure that was being taken by the making of the placement order. The issue is not merely one of form or procedure: there can be no more draconian measure in the context of the relationship between parent and child than an order which permanently severs family ties. The need for safeguards against arbitrary, or even merely unjustified or unnecessary interference, is compelling (see § 136), and one such safeguard is the provision of clear and detailed reasoning in the judgment demonstrating not only that the child’s best interest and other factors have been weighed in the balance, but also that the domestic criteria for the making of the relevant order have been carefully considered and scrupulously applied. The County Court judgment is lacking in all this.

7. It should also be borne in mind that the Court declared the complaint in respect of Article 8 admissible (and with that I agree). This means that whatever remedies were available to the applicant as are mentioned in the Court of Appeal’s decision of 24 November 2009, these were relevant, if at all, at the domestic level, but should not been taken into consideration by this Court. In any case, the “remedy” of requesting the judge to, as it were, beef up his reasoning after the judgment has been delivered (which seems to be more than just correcting mere factual error, spelling mistakes, numbers etc), thereby allowing the judge to “make up” for substantial mistakes even in his assessment of the facts or of the law, seems a very odd way of administering justice.

8. Finally, the doctrine of the margin of appreciation, and the concomitant doctrine of quatrième instance , when applied to judicial decisions mean no more and no less than that the domestic courts’ decisions will, as a rule, not be queried as to the evaluation of the facts and evidence before them or as to the interpretation of domestic law. These doctrines do not mean or imply, nor should they be applied in such a way as to suggest that they so mean or imply, that this Court is absolved from its supervisory duty of ensuring that domestic courts’ judgments meet, in form or in substance, all the Convention criteria. These doctrines should be applied evenly across the board, and irrespective of whether the legal or judicial system concerned can trace its lineage back to the post-Soviet era or to the meadow at Runnymede.