C, D and E (Care Proceedings (Adequacy of Reasons) [2023] EWCA Civ 334

I acted for the successful Appellant mother in the above case in the Court of Appeal (having not acted in the earlier hearings).  This was an appeal against care orders made in respect of three young children and a placement order made against one of them. The Court of Appeal allowed the appeal   and the case has been remitted for a re-hearing before a fresh tribunal.

Background

Originally there were 5 children involved – A, B, C, D and E. All share the same father. C, D and E are the Appellant’s children.

In January 2021, A and B alleged that they and their younger half-brothers, C and D, had been subject to physical abuse from the Appellant and that their father had failed to protect them. All 4 children were removed into foster care. In May 2021, the Appellant gave birth to a daughter, E. An interim care order was made in respect of E when she was born, but in fact she and the Appellant were discharged to a mother and baby residential assessment unit where they remained throughout proceedings.

In October 2021, a fact-finding hearing was started but had to be adjourned till April 2022. On 21 April 2022, the Recorder hearing the case delivered a judgment making a number of findings against the parents which included physical abuse by the Appellant. The Recorder also found that the father knew about the abuse but did nothing to stop it. The case was adjourned for further assessments and listed for a final hearing in November 2022.

At the final hearing, the local authority argued that A be accommodated in a supported residential unit, and B in long term foster care. These plans were not opposed.

The proposed plans for the younger three children were opposed by the parents. The local authority contended that C and D should remain in long term foster care, whereas the parents argued that they should be returned to their care or placed with a paternal aunt under a special guardianship order. With regard to E, the local authority sought a final care and placement order. The parents sought for E to remain in their care pursuant to a supervision order.

The first instance Judgment

Judgment was handed down on 23 November 2022 after a 6-day final hearing. It was a reserved judgment running to 177 paragraphs. The judgment started by covering the background facts, the procedural background, confirmation that the threshold criteria for making care orders had been made out and that the welfare of the children was the Court’s overriding consideration. In addition, the welfare checklist was quoted. With respect to of E, the judgment covered the relevant statutory provisions for making a placement order including the welfare checklist set out in s1 of the Adoption and Children Act 2002.

Paragraph 35 of the judgment included thanks to counsel for the guardian and the local authority for setting out the case law in their closing submissions and suggested that if there were to be a transcript of the judgment then the transcriber was invited to include the relevant paragraphs from those submissions.

The bulk of the judgment (paragraphs 48-172) was passages from the written and oral evidence which had been presented. It was largely included as it had been presented and was not commented upon by the Recorder, save for a passing comment about the Appellant’s evidence.

The final four paragraphs of the judgment made the orders sought by the local authority saying that the care of the children, including E, could not be entrusted to the mother and was fraught with risk which no court could countenance. The Recorder stated that “The evidence is overwhelming in my judgment that the welfare of B, C and D requires the making of care orders, endorsing the local authority plans for them, endorsed by the Guardian…. In relation to E, the risks are the same, It is extremely sad given that everybody acknowledges that in the contained environment of the unit, [the appellant] has provided not only adequate, but good basic care for this little girl. However, the evidence of the parents in relation to the findings and in relation to the concerns and in relation to the past injury, physical and emotional, which the elder children sustained, is confusing, inconsistent and wholly unsatisfactory. …the care of E cannot be entrusted to the mother, with or without the father. The risks simply cannot be countenanced… The professionals have explored other options conscientiously and anxiously, as have I… It is in my judgment entirely correct that there is only one option for this little girl, and that is for me to make the placement order sought by the Local Authority. Nothing else will do.”

There was little or no explanation either as to why the Recorder had reached the conclusions that he had, or as to how the evidence presented to the court led to it (particularly in light of the comment that the care provided by the mother to E was good). In addition, there was a distinct lack of analysis.

Care orders were made in respect of all three children. In addition, a placement order was made for E and she was then removed from the care of her mother -with whom she had lived since birth and had a close bond with - and placed into foster care.

Court of Appeal proceedings

The mother initially filed grounds of appeal herself. I was then instructed to consider whether there were any sustainable grounds of appeal and, if so, to file amended grounds. Permission to appeal was granted on 9 February 2023 in respect of the amended grounds filed.

The appeal was heard on 16 March 2023 and judgment handed down two weeks later. The mother was successful in her appeal, with the Court of Appeal  holding that the Recorder had not adequately analyzed the various options available or explained how he had reached his decision to remove C, D and E from their parents’ care. The case serves as a useful reminder of the principles of law which are relevant in these types of decisions.

Adoption is a draconian option and should only be the outcome where nothing else will do – not the default because other solutions are not thought to be perfect. The Court of Appeal judgment reiterates the approach which must be taken by a court considering a care plan for adoption. At paragraph 17 Baker LJ states that “The approach which must be adopted by a court considering a care plan for adoption is now clear and well-understood. In view of what happened in this case, however, it can do no harm to set it out again.” Lord Justice Baker was referring to judgments in cases such as Re P (A Child) [2013] EWCA Civ 963, Re G (A Child) [2013] EWCA Civ 965 and Re B-S [2013] EWCA Civ 1146.

It is clear from the jurisprudence that the court must address all of the reasonable options and judgments should include a discussion of each of the options with the advantages and disadvantages set out.  Adoption has to be necessary, proportionate and a placement order made only when nothing else will do and this must be reflected in the judgment.

At paragraph 23, the Court of Appeal cited the approach set out towards judgment writing by Peter Jackson LJ in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407. It is key that the evidence as a whole must be evaluated with an explanation given as to the weight being placed on various parts of the evidence and the reasons for that, and that the judge clearly explains the reasons for the decision which it has reached. The approach is not meant to be prescriptive because each judge will approach judgment writing in their own individual way, but it is crucial that the analysis and explanation is provided in each case. This is important both for the parents who need to understand why their child is being removed; to the various agencies which have to implement the decision; and to the child and his/her carers who may want to understand the situation in the years ahead.

In this case, the Court of Appeal agreed that the judgment provided by the Recorder fell short by not including the rigorous analysis and explanation of the various options and the reasons for concluding that care orders and a placement order were required. Whilst the Recorder had properly mentioned the statutory welfare checklists, he did not go on to analyze the options available by reference to those checklists. The judgment did not contain any details of the evaluation of the possibilities for the children’s future, an assessment of the risk of harm, how this could be mitigated (in the case of E) or any analysis of how the risk of harm of removing the child was said to be greater than the risk of harm of leaving her with her mother who was acknowledged to have provided a good standard of care to her since her birth. The conclusion that adoption was in her best interests was not the subject of the balancing exercise which is required by law.

The Court of Appeal considered the question of whether a request for clarification of the reasons could have been made (as suggested by Counsel for the local authority) of the Recorder and gave some very helpful guidance in this regard. It determined that whilst this may well be helpful in cases where there is a discrete point which needs to be clarified, it is not suitable in a case, such as this, where the deficiencies were such that they could not be fairly remedied in this way. This would have had the effect of asking the Recorder to justify a decision which had not been made properly rather than to resolve any points of ambiguity in the decision itself.

The Court of Appeal therefore allowed the appeal and remitted the case to be reallocated to another judge for a fresh welfare hearing.

Significance of this case

This case is a useful reminder of the way in which judges must approach decisions of this nature which have a profound and far reaching effect on family life and particularly on the children who are the subject of them. When permanently removing a child from their family, it is crucial that the judge is satisfied that there is no other path which could be taken and no other way to minimize the risk of harm to which the child might be exposed. They must explain that reasoning clearly and methodically and not simply declare that the decision has been made without a detailed explanation.

The case reiterates principles which have been raised in several other cases over the last 10 years. From the children’s point of view it is a very sad situation. C and D were removed from their home in January 2021. Over two years later, they do not have any certainty about the future. If they do return to their mother’s care, they will have had a very prolonged period of time elsewhere and may well find it very unsettling. For E, the position is even more profound. She lived with her mother from birth until she was approximately 18 months’ old and was said to have a strong bond with the mother who was able to provide a good level of care for her. Nevertheless, she was removed from her mother and placed into foster care where she remains. The risk is that by the time that the proceedings finally conclude, she may have spent as long a period of time away from her mother as with her and again that might make any return challenging. This case is a good example of why it is important to conclude proceedings involving children fairly and  expeditiously (allowing, of course, sufficient time to make a properly reasoned decision about their future with the best evidence available for this purpose). Their lives depend on it.

The full Court of Appeal judgment is available here.