The Court of Appeal has allowed an appeal brought by a great-aunt from care and placement orders made by a judge at the conclusion of proceedings concerning a two-year-old boy, J.
In W (A Child), Re  EWCA Civ 1966 the Court of Appeal set aside the orders and the local authority’s application, should it wish to pursue it, will be reheard.
The background to the case was that the mother was a vulnerable young woman with considerable needs of her own, including learning disabilities, who accepted that she was in no position to care for J, who was born towards the end of 2017. The mother continues to live with the great-aunt with whom she had previously lived from time to time, and had identified as a potential long-term carer for J.
The sole ground of appeal was that the judge in making the orders failed to give an adequately reasoned judgment. The ground was particularised to the extent that three specific alleged deficits were identified namely:
- a failure sufficiently to analyse the factors set out in the welfare checklists contained in both s.1(3) Children Act 1989 and s1(4) Children and Adoption Act 2002;
- a failure to conduct an adequate holistic balancing exercise and to take into account such matters as the appellant's positive attributes; and
- a failure to carry out an adequate evaluation of the risk factors and the proportionality of adoption.
Lady Justice King said the question in the case was, therefore, did the judge, in her short judgment of eight pages, give a clear description of the factors considered and the reasoning that underpinned her conclusion prior to making a placement order.
The global submission of counsel for the appellant was that the judge failed to give adequate reasons for making that order.
The judgment, he submitted, lacked any proper evaluation of the risks or proportionality of adoption. The absence of any proper consideration led the judge to fail to analyse the relationships J would lose, and what the benefits of those relationships were against any identified risk.
Any proper consideration of the proportionality of adoption would, the great-aunt’s counsel said, have led the judge to have considered the reasons which lay behind a 'U Turn' by the local authority, which had at one stage, withdrawn its application for a placement order and supported the making of a Special Guardianship order, before then resiling from that position. The judge would also have had to consider what had changed in terms of risk in a matter of weeks, "a topic entirely unaddressed in the judgment", counsel argued.
Counsel for the local authority acknowledged the lack of analysis within the judgment, but submitted that ultimately the judge reached a decision in a finely balanced case, which was supported by both the ISW [Independent Social Worker] and the Guardian.
There was, she argued, sufficient detail for the parties to understand why the judge had concluded adoption was the only order which would meet his needs.
On the issue of welfare checklists, Lady Justice King said the case was unusual in that the proposed placement for J would have meant that whilst the great-aunt would be his primary carer, his biological mother would be living under the same roof.
“Adoption would therefore result in J not only losing his attachment with his great-aunt (whose relationship with J is described in the final addendum as ‘warm, gentle and generally child centred, attuned and responsive’) but also his relationship with his mother (described in the same report as: ‘A particular attachment to his mother is apparent during contact. J is visibly animated in her company, greets her with great enthusiasm and tries to engage her in play’),” the Court of Appeal judge said.
Lady Justice King said the totality of the judge's analysis of this important factor was found in one sentence: "By the making of a Placement and Adoption Order he would lose contact with his family and that is a serious matter."
Lady Justice King said there appeared to have been no evidence that the mother living under the same roof as J was a particular difficulty or in any way undermined the application of the great-aunt.
“The judge said that a time might come when J is ‘easier to look after’ and that the mother may then wish to take a larger part in his care. That, the judge said, would be ‘undesirable’; but this mother has accepted, from J being a matter of days old, that she is unable to look after him. If something was said by the ISW in oral evidence to undermine the validity of that acceptance by the mother of her limited role in J's life, it should have been in the judgment,” Lady Justice King said.
“There is, however, no summary of the ISW's evidence in the judgment and no one has taken the court to anything in the written evidence which would render the judge's observation as anything more than speculation.”
Lady Justice King continued: “In my judgment, the unusual feature of this case, namely that J would be able to live under the same roof as his mother should he be placed with the great-aunt, is a matter of considerable significance as a potential benefit to J and should have been specifically identified and analysed as such as part of the consideration of the welfare checklist.”
On the second limb of the appeal, and in particular the great-aunt’s positive attributes, Lady Justice King acknowledged that the judge had been faced with a difficult task.
“She had not case managed the case with all its twists and turns, there was the volte face on the part of the local authority and, further, she appears to have been given a picture of contact which it might have been felt not to have been even handed. The judge's judgment however focused almost entirely on what were the undoubted concerns held by the ISW in respect of the great-aunt's ability to provide a safe, secure home for J throughout his childhood. Nowhere in the judgment does one find reference to the great-aunt's many strengths which had been identified throughout the assessment process,” the Court of Appeal judge said.
This fed into what, “with great respect to this busy and experienced judge”, was at the heart of this appeal, namely that the judge gave inadequate reasons and failed adequately to analyse important factors.
Lady Justice King said: “I have reluctantly come to the conclusion that not only did she fail adequately to analyse the evidence generally but, as set out above, when criticising the great-aunt, it would appear that, on occasion, she misunderstood or misinterpreted the evidence, as, for example, in relation to the great-aunt's practical parenting skills.”
Without a clear consideration of both sides of the equation, the judge could not hope to have reached a proper balanced decision. “Further, whatever is the ultimate outcome of the case, where a party has (i) spent a year undergoing assessments, (ii) spent a considerable amount of money in order to make her home suitable for a young child; (iii) made significant (although the judge would say insufficient) changes to her lifestyle; and (iv) is described in an assessment report as " a remarkable woman with a host of admirable talents and commendable qualities…with great potential and much to offer J", that woman should see those positive features being put into the equation by the judge when considering whether adoption is the only course which would serve J's best interests; only in doing so could the great-aunt be confident that those positive features had been taken into account.”
On the third limb of the appeal, Lady Justice King described the judge’s evaluation of risk as “somewhat superficial”.
She said: “In saying this I do not minimise the concerns raised by the ISW in this regard or in relation to her concerns as to whether the great-aunt could be trusted to be open and honest with the local authority. However, the judge needs …. to explain why the facts justify a conclusion that the child is at risk of harm.”
An example in this case had been the great-aunt's failure to inform the assessor that her daughter had been sexually abused.
Lady Justice King said: “This failure on her part was undoubtedly a potential risk factor, but that bare fact needs then to be considered against: (i) the great-aunt's explanation for this omission, namely that it was just too painful to discuss, an explanation that the ISW understood and had been accepted by the ISW not to have been part of a calculated plan to prevent her from discovering what had happened; (ii) that on investigation it became apparent that not only was the great-aunt in no way culpable for the abuse having taken place, but she had acted impeccably in protection terms; believing her daughter, calling the police notwithstanding that the culprit was a family member, and supporting her daughter during the criminal trial and thereafter.
“It would be only by conducting this type of analysis that the court could be satisfied that the fact relied on by the local authority, namely that the great-aunt failed to inform the assessor that her daughter had been abused, justified a conclusion that J is at risk of suffering emotional, let alone actual harm in the care of his great-aunt.”
The Court of Appeal judge said that in reaching the conclusion that she had in this case she was “mindful of the immense burden on care judges and I reiterate that nothing I say is, to rehearse McFarlane LJ's words, ‘intended to raise the bar, alter the law or otherwise cause 99.9 per cent of the judges who undertake this work to depart from their current practice’.”
Lady Justice King, with whom Lord Justice Henderson and Lord Justice Moylan agreed, said that the great-aunt’s counsel had made good his global submission.
She said: “In my judgment it is not possible from the reasons as articulated by the judge for the court to be satisfied that the making of a placement order would be a proportionate outcome for J. It follows, therefore, that both the care and placement orders must be set aside, and J will continue to be in the care of the local authority pursuant to S20 Children Act 1989, pending the matter being reheard.”