M (Child), Re

In care proceedings, an appellate court must correct a decision that is plainly wrong or reflects a manifest error. A court deciding whether to discharge a care order must consider the child’s timescale, established attachments, and the consequences of an earlier decision intended to provide finality and certainty. Subsequent improvement in a parent’s circumstances may come too late to justify rehabilitation. The child’s welfare remains paramount, although the family-life interests of the parent, child and foster carer must all receive respect. Where discharge is wrongly ordered, the appellate court may restore the care order and make a freeing order itself when remittal would be unrealistic and delay would prejudice the child.

The local authority appealed from Plymouth County Court, where His Honour Judge Wigmore discharged a care order relating to J and expressed the hope that J would return to his mother and sibling. J had lived with the same foster carer for most of his life following unsuccessful rehabilitation attempts. The mother’s health and circumstances had improved, and a separate care order concerning M had been discharged.

The local authority and guardian ad litem argued that the judge had failed to explain his rejection of the professional evidence and had insufficiently considered J’s established attachment, the earlier decision for finality, and his timescale. The central issues were whether the discharge decision was plainly wrong and, if so, what order the Court of Appeal should make.

1. Appeal allowed. Lord Justice Thorpe delivered the substantive judgment, and Mr Justice Wilson agreed.
2. The judge’s treatment of the competing cases materially distorted the issue. Dr Speller was treating the mother and was not a child-centred expert witness. The judgment also failed sufficiently to recognise that the guardian ad litem supported the professional evidence against discharge.
3. The earlier decision had unequivocally rejected discharge and was intended to provide finality and certainty. Its consequences had been communicated to J and the foster carer, who had relied upon it and developed their relationship on that basis. Once those processes had been set in train, the realistic opportunity for judicial reversal was greatly reduced.
4. The judge failed adequately to apply J’s timescale and welfare. J had spent virtually his whole life with the foster carer, who was his psychological mother, while contact with his biological mother had been limited. Moving him to the mother carried substantial risks, particularly because a subsequent breakdown would deprive him of the settled placement without securing a stable birth-family placement. The mother’s improvement was recognised but had occurred too late for J.
5. The mother’s reliance on continuing justification for state intervention did not alter the result. The mother, J and the foster carer each had family-life interests requiring respect, but J’s welfare was paramount.
6. The Court of Appeal restored the care order and made a freeing order itself. Remittal would have required a token judgment from a judge who had retired, and expedition was necessary to secure J’s future. The local authority was permitted to disclose appropriate papers to the foster carer’s solicitors, and the mother’s costs were subject to legal aid taxation under the old system.

• Court of Appeal (Civil Division): allowed the local authority’s appeal from the order of His Honour Judge Wigmore in Plymouth County Court. The care order was restored and a freeing order was made.