Court of Appeal allows appeal over public law children judgment “so plainly lacking in analysis”

The Court of Appeal has allowed an appeal against care orders made in respect of three children, describing the judgment as lacking “crucial analysis, and any adequate consideration of the factors under the statutory welfare checklists”.

In C, D And E (Care Proceedings: Adequacy of Reasons) [2023] EWCA Civ 334 it was agreed by all three judges for the case to be reallocated to another judge to conduct a fresh welfare hearing.

Outlining the background to the case, Lord Justice Baker said the proceedings originally concerned five children – four boys, A, B, C and D and a girl, E.

The third respondent was the father of all five children. The second respondent was the mother of the two older children. The appellant was the mother of the three younger children.

Lord Justice Baker said A and B were the subject of earlier care proceedings which concluded in 2015, with the making of a child arrangements order that the children should live with the father and a twelve-month supervision order in favour of the local authority.

He said: “The present proceedings were started in January 2021 after A and B made allegations that they and their half-brothers C and D had been physically abused by the appellant and that the father had failed to protect them. The four children were removed from the family home and placed in foster care under interim care orders.”

The Court of Appeal judge continued: “In May 2021, the mother gave birth to E who was also made the subject of care proceedings and placed under an interim care order. After discharge from hospital, the appellant and E were immediately accommodated in a mother and baby residential assessment centre where they remained throughout the proceedings.”

On 21 April 2022, Recorder Main Thompson delivered a judgment in which he made a number of findings against the parents, including that the appellant had physically abused the four older children.

At the final hearing, the local authority contended that the four older children should be made the subject of full care orders, with A accommodated in a residential unit and B, C and D in long-term foster care. In respect of E, the local authority proposed that she be adopted, and they filed an application for a placement order authorising her placement for adoption, said Lord Justice Baker.

The father and the appellant proposed that C and D should be returned to their care, or placed with a paternal aunt under a special guardianship order. With regard to E, they opposed the local authority's plan for adoption and contended that, upon leaving the residential unit, E should remain in their care under a supervision order. However, the children's guardian supported the local authority's plans for all three children.

Lord Justice Baker noted that following the judgment, care orders were made in respect of all three children and a placement order in respect of E. Shortly afterwards, E was removed from the care of her mother, the appellant, with whom she had lived throughout her life, and placed in foster care where she remains.

On 16 December 2022, the mother filed a notice of appeal against the care and placement orders. The grounds of appeal (as subsequently amended) read:

1. The learned recorder failed to properly evaluate and analyse the risk of harm and future harm to E and the proportionality of mitigating such a risk.
2. No or no proper analysis was undertaken pursuant to Re B-S (Children) [2013] EWCA Civ 1146.
3. There was no evaluation of the welfare checklist in respect of each child.

On 9 February 2023, King LJ granted permission to appeal on grounds (1) and (2) in respect of E only and on ground (3) in respect of C, D and E.

Looking back upon the judgment, Lord Justice Baker said that it was “immediately apparent” that the recorder's judgment “fell far short of the standard required”.

He said: “The reasoning in paragraphs 174 to 176 was peremptory and so far as I can see there is no material earlier in the judgment to fortify what is said in those paragraphs. There was no rigorous evaluation of the possibilities for the children's future, no adequate assessment of the risk of harm or the possibilities for reducing the risk or mitigating its effects, no comparison of the harm that the child would be at risk of suffering in the family placement against the risk of harm from the separation from parents and siblings, and consequently no valid conclusion that adoption was the only outcome that could provide for E's lifelong welfare.”

He continued: “At no point did the judge analyse the options for any of the three children by reference to the statutory welfare checklists which he had correctly cited at the outset.”

It was argued by the Court of Appeal judge that the deficiencies were “most glaring” in the case of E.

Mr Tim Parker KC, on behalf of the local authority, “did not attempt to defend the judgment in its current state”, said Lord Justice Baker. Adding: “He acknowledged that it encompassed neither a drawing together of the strands of the evidence to assess risk nor a detailed assessment of the respective welfare checklists”.

Following the recorder's judgment, no party had submitted a request for clarification.

Mr Parker accepted that, had such a request been made and the judgment remained as it is, there could be “no reasonable opposition” to the appeal.

Turning to the practice of seeking clarification of reasons in family cases, Lord Justice Baker said: “In this case, the deficiencies are on a scale which cannot fairly be remedied by a request for clarification. We would not have been asking the recorder to clarify an ambiguity or omission in part of his reasoning but to set out his reasoning in its entirety.

“For my part, I would not be confident that we would be asking the recorder to set out an analysis which he had in fact carried out but for some reason omitted to include in the judgment. Rather, where the absence of recorded analysis is on this scale, there is a danger that we would be asking him to carry out an ex post facto rationalisation for a decision he has made without proper analysis."

He continued: “We would be asking him to perform a task that should have been undertaken before the decision was made, namely, as McFarlane LJ described it in in Re G, "that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place". This would be wrong as a matter of principle and manifestly unfair to the parties, in particular the mother but also the children.”

The Court of Appeal judge questioned: “How did it come about that he delivered a judgment that was so plainly lacking in analysis?”

In her closing submissions, Ms Barran for the guardian summarised the principles in Re B-S, including the requirement that "there must be an adequately reasoned judgment by the judge".

On this, Lord Justice Baker said: “For some reason, the recorder failed to comply with that requirement. Had the key legal principles been included in the body of the judgment, it is at least possible that the obligation to carry out a holistic analysis of the advantages and disadvantages of each realistic option would have been in the forefront of the recorder's mind leading him to set out his reasoning in sufficient detail. That is, however, only speculation on my part.

“The fact is that, for whatever reason, the judgment lacks the crucial analysis, and any adequate consideration of the factors under the statutory welfare checklists, which the senior courts have stressed is required when reaching and recording decisions about the future of children in public law proceedings.”

Lord Justice Baker concluded that the appeal should be allowed in respect of the decisions relating to all three children, and remitted the case to the Family Division Liaison Judge for London, to be reallocated to another judge to conduct a “fresh welfare hearing”.

Both Lord Justice Coulson and Lady Justice Macur agreed.

Lottie Winson