Court of Appeal orders fresh welfare hearing over failure of judge to sufficiently examine risk of harm to children when making placement order

The Court of Appeal has ordered a fresh welfare hearing in a case where a Family Division judge decided that three children should be placed for adoption after he found, amongst other things, a major stumbling block to be the parents' irrational and extreme over-reaction to the involvement of professionals in their lives and those of their children, most especially social workers.

In A, B & C (Children: Adoption), Re [2020] EWHC 2335 Mr Justice Keehan described the mother as “the most egregious liar” he had ever encountered. He also concluded that he had been wrong earlier to place any trust in what was said by the children’s father too and that he had lied in his evidence.

However, the judge also acknowledged that the parents deeply loved their children and their children loved them. “There is no question, and never has been, that the parents are more than able to meet the basic care needs of the children.”

The case concerned three children: R (a boy aged 3), J (a boy aged 2) and Q (a girl aged 1).

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In K (Children: Placement Orders), Re [2020] EWCA (Civ) 1503 Lord Justice Peter Jackson set out the (unchallenged) facts of the case:

3. The parents were born in Ghana. The mother came to the UK as a student in 2007 and became a British Citizen in 2012. She and the father married in 2016. They have no addictions or criminal convictions. Both parents work and the mother's job involves international travel. Members of the wider family networks live in Ghana and elsewhere in the world.

4. The family first came to the attention of the police and the local authority in May 2017 following an incident in the home in which R (then aged 10 weeks) sustained a small bruise above his right eyebrow. The mother called the police, complaining that this had occurred during an assault on her by the father. R was taken to hospital and kept under observation. On discharge the next day, R returned to his mother's care under an agreement with the local authority that she would live separately to the father. R remained within the family until he was 18 months old.

5. Unfortunately, the parents set their faces against cooperation with the local authority. In July 2017, the police found the father hiding in the family home. From October 2017, the local authority was repeatedly unable to make contact with the family and on 22 December 2017 it issued an application for a care order in respect of R. Papers relating to the proceedings had been posted through the letterbox of the family home and on 21 December the mother and R left the jurisdiction.

6. Because the child could not be found, the proceedings were allocated to High Court level and in January 2018 they came before the Judge for the first time. In the 2½ years that followed he conducted no fewer than 30 hearings. The mother returned to the jurisdiction, apparently without R. Orders were made that she should not leave the jurisdiction and that R should be returned. Despite this, both parents left the jurisdiction. At the time, unknown to the authorities, the mother was pregnant with J. Further orders were made and publicity was given to the return order relating to R.

7. J was born in Florida in July 2018. As a result of the publicity, the mother was by chance identified in hospital. The father was arrested and both children were placed in care in the USA. Care proceedings were issued in relation to J.

8. After legal proceedings in Florida, R was returned to the UK in August 2018 and J arrived here in October 2018. The boys were placed in the same foster home under interim care orders. The parents participated in a parenting capacity assessment over the course of several months. Their relationship with the children, seen at contact, was positive and R was noted to be a healthy child who had been well cared-for. They had suitable accommodation. Concerns remained about the initial incident in May 2017, about which the mother had changed her story, and about the events surrounding J's birth. Nonetheless, in January 2019, the local authority concluded that the two boys could be returned to their parents under a supervision order. The Children's Guardian did not agree. She expressed scepticism about the genuineness of the parents' co-operation and about the risks arising from domestic abuse and instability of care arrangements. She was concerned at the parents' stated intention to take the children to Ghana, where their welfare could not be monitored. More information was needed before a return to the parents could be supported and a plan for adoption also needed to be considered.

9. After a six-day fact-finding hearing ending on 29 March 2019, the Judge found that neither parent had told the truth about what had led to the injury to R and that it was caused by one or other of them, that the mother had abducted R to avoid the care proceedings, that the father was complicit and that the parents were a flight risk. He found that the mother had lied about her statements against the father, and about what she had said to a doctor, a police officer, her former solicitor and her counsel. The father had also lied about a number of matters. Directions were given for a welfare hearing to determine the children's future.

10. At the time of the hearing, again unknown to the authorities, the mother was expecting Q. From June 2019 she stopped attending contact to avoid her pregnancy being detected. She next saw the boys in December 2019.

11. The parents then devised a plan to deceive the local authority and the court into returning the boys to their care. In September 2019 the father informed the local authority that he had separated from the mother and asked to care for the children as a sole carer. A week later, Q was born in the Republic of Ireland.

12. Even without knowledge of Q's existence, the local authority and the Guardian did not support the return of the boys to the father alone and applications for placement orders were issued in October 2019.

13. At a final hearing in November 2019, adjourned part-heard to December, the Judge heard evidence from the father to the effect that the mother was off the scene. He overruled the local authority and the Guardian and directed the local authority to file a rehabilitation plan for the boys to be returned to their father's care on condition that he had no contact with the mother. He accepted solemn assurances from the father and imposed strict conditions that he was to have no contact whatsoever with the mother. He set a hearing in January for a decision to be taken about whether and how the plan should be put into effect.

14. In fact, the parents had not separated at all. Ten days after the hearing in November 2019, the mother called the police in the course of an incident between herself and the father, but later attended a police station and withdrew her complaint. Then, on 21 January 2020, the parents were stopped by the police whilst together in a car with Q near to Gatwick Airport. On the following day, an interim care order was made in relation to Q and she was placed together with the boys. The rehabilitation plan for R and J was suspended. An application for a placement order for Q was made in May 2020.

Lord Justice Peter Jackson said: “This is an unusual and difficult case. Capable and loving parents (to use the Judge's description of the father) reacted in such an extreme manner to the local authority's efforts to carry out its statutory duties that the situation swiftly escalated out of proportion to the original concerns. The social workers and the court were fully justified in feeling anxious for the children's welfare as the parents brought about a breakdown of trust by their repeated deceptions and concealments and, when they were exposed, by their brazen lying. The impact of this behaviour on the process of assessment and decision-making across this lengthy litigation, involving huge expenditure of time and money, is easy to understand. Whatever else might be said, the parents have severely let the children down.”

The Court of Appeal said that in circumstances like this, the court would want to return to first principles. “These start with the principle that adoption of a child against the parents' wishes should only be contemplated as a last resort – when all else fails: Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 191, per Lord Neuberger at [104]. That is a stringent test and a rigorous and reasoned evaluation of all the realistic options must be carried out before it can be concluded that adoption is necessary and proportionate: Re B-S (Children)  [2013] EWCA Civ 1146, [2014] 1 WLR 563.”

He said the relevant welfare checklist would be of particular value in a difficult or unusual case. He highlighted the provisions of Section 1(4) of the Adoption and Children Act 2002, which he said provided structure for decisions and ensured that all welfare elements were taken into account.

“So in the present case the children's particular needs under (b) include the need to stay together if at all possible, while their background under (d) includes their Ghanaian/black British heritage. In issue were the questions of harm and risk of harm under (e) and the ability of the parents to provide a secure environment and otherwise meet their needs under (f)(ii),” the Court of Appeal judge said.

Lord Justice Peter Jackson said the next general matter concerned the significance of lies. “The correct approach to lies in relation to fact-finding is well known and the Judge appropriately gave himself a Lucas direction in that context. Here the more pertinent matter for our purpose concerns lies in the context of welfare. Lies, however disgraceful and dispiriting, must be strictly assessed for their likely effect on the child, and the same can be said for disobedience to authority. In some cases, the conclusion will simply be that the child unfortunately has dishonest or disobedient parents. In others, parental dishonesty and inability to co-operate with authority may decisively affect the welfare assessment. But in all cases the link between lies and welfare must be spelled out.”

The Court of Appeal judge noted that this did not happen in Re Y (A Child) EWCA Civ 1337, where Macur LJ had said, amongst other things that he considered the case to have been hijacked by the issue of the mother's dishonesty and that: “It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case. No analysis appears to have been made by any of the professionals as to why the mother's particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance."

Peter Jackson LJ also pointed to the case of Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761 where he had attempted to set out the questions that the court should ask itself when assessing risk of future harm and setting it in context:

(1) What is the type of harm that might arise?

(2) What is the likelihood of it arising?

(3) What consequences would there be for the child if it arose?

(4) What steps could be taken to reduce the likelihood of harm arising or to mitigate the effects on the child if it did?

The answers are then placed alongside other factors in the welfare equation so that the court can ask itself:

(5) How do the overall welfare advantages and disadvantages of the realistic options compare, one with another?

(6) Ultimately, is adoption necessary and proportionate – are the risks bad enough to justify the remedy?

Against that background Lord Justice Peter Jackson returned to the present appeal.

“31. In my judgement the decision to make care and placement orders for these children cannot be sustained on the basis of Judge's reasoning. His findings of fact cannot be criticised and the threshold for making care orders was plainly crossed. However, in a case in which the risk of harm was the central issue in the proceedings, there is substance in the argument that he did not sufficiently examine the reality of the risks to these children if placed with their parents. Nor, in a case where the other welfare factors tended to point away from adoption, does the judgment explain why those risks were so bad that it outweighed them. Instead, the parents' reprehensible behaviour came to eclipse other welfare considerations. In the end, the stark choice was between an unmonitored placement with the parents or a search for adopters. Each option had difficulties, not least in the short term, but the judgment treated the risks presented by the parents as self-evidently unacceptable. That conclusion needed further explanation. The crux of the matter is found at paragraphs 112 and 113 where the analysis is, as has been submitted, circular. The real question is whether the findings at paragraph 107 justified adoption.

32. Although it did not feature as a ground of appeal, I also consider that there was a gap in the evidence about the likely availability of a single adoptive placement for these three children. That gap finds its reflection in paragraph 123, where the Judge contemplates a change of direction of some kind if a single placement could not be found. The children have very particular needs as a sibling group, recognised by the Judge when he approved "adoption, but all placed together". They also have very particular identity needs. In a case of this difficulty the court needed the best available evidence about whether an appropriate adoptive placement might be available for the children before reaching a final decision. Otherwise the choice would be between long term foster care and placement with the parents, both being options that the Judge appeared to rule out.

33. I would therefore remit the matter for a fresh welfare decision, preserving the Judge's findings of fact. The care and placement orders will be set aside and the interim care orders will revive. I would only add that the parents' undeserved success on this appeal should not lead them to assume that their children will not be adopted. The decision remains a difficult one and it will be made on the basis of the court's existing findings of fact together with its conclusions on any further evidence that may be put before it. There will be an urgent case management hearing before a judge of the Family Division so that directions can be given for an early final hearing.”

Lady Justice Simler and Lord Justice Underhill agreed.

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