B & M (Children), Re

Meeting the threshold for care does not, by itself, establish that adoption is necessary. Permanent removal of a child from the birth family is a drastic measure, justified only in exceptional circumstances and where essential to the child’s best interests.

Under Children Act 1989 and Article 8 of the European Convention on Human Rights, the court must consider whether a less intrusive family placement, supported by appropriate safeguards, would protect the child’s welfare and from the likelihood of significant harm. A trial judge may reach a different risk assessment from experts or a guardian after evaluating their evidence carefully. Appellate disagreement about the weight given to competing factors is not, without more, a ground for intervention.

The local authority appealed against an order made by Mr Recorder Rex Tedd QC in the Wolverhampton County Court on 2 August 2002 in care proceedings concerning two children. Their parents had longstanding drug and alcohol problems and were imprisoned. The children had initially stayed with their paternal grandmother before being placed in foster care.

The local authority’s plan was adoption. The grandmother sought to care for the children, although no formal assessment of her had taken place. The recorder accepted that the statutory threshold was met, considered the risks identified by the psychologist and guardian, and ordered that the children live with the grandmother under a supervision order. The central issues were whether he had given adequate weight to the professional evidence and whether adoption was a necessary and proportionate response.

Appeal dismissed. Lady Justice Hale gave the first judgment and Lord Justice Aldous agreed. The appellant was ordered to pay the third respondent’s costs, subject to detailed assessment.

1. The recorder had to be satisfied that the threshold criteria in section 31(2) of the Children Act 1989 were met before adoption could be pursued. The parents conceded, and the recorder accepted, that the children were at risk of significant harm. That threshold conclusion did not itself establish that adoption was necessary. The relatively weak foundation for the threshold finding was relevant when assessing whether permanent removal was justified.
2. Welfare remained paramount under section 1(1), and the recorder properly applied the welfare checklist in section 1(3) of the Children Act 1989. Article 8 rights were engaged. Permanent removal from the birth family was a drastic measure, justified only in exceptional circumstances, when essential to the child’s best interests and proportionate to the aim of protecting the child. If a family placement, with appropriate safeguards, was sufficient to protect welfare and against the likelihood of significant harm, adoption could not be justified.
3. The recorder was entitled to reach a conclusion different from that of the forensic psychologist and children’s guardian. He had carefully considered their concerns, the basis for their opinions, the grandmother’s evidence and the objective history. Appellate criticism that he had given insufficient weight to particular risks amounted to disagreement about evaluation rather than an error of law.
4. A judge may be prepared to take risks which a local authority reasonably declines to take, provided the risks are assessed carefully on the totality of the evidence and in accordance with the legal requirements. The recorder identified the risks concerning depression, parental disruption and control of the children, but found that they could be managed with safeguards.
5. The recorder was not obliged to pursue placement under a care order when the local authority had not proposed or accepted that course. Nor did the absence of a formal grandmother assessment invalidate the decision where the court had sufficient evidence and further assessment would serve no purpose. The order placing the children with the grandmother under a one-year supervision order was therefore upheld.

1. Court of Appeal (Civil Division) dismissed the local authority’s appeal and upheld the order placing the children with their paternal grandmother under a supervision order.
2. Wolverhampton County Court, Mr Recorder Rex Tedd QC, ordered on 2 August 2002 that the children should live with their paternal grandmother, subject to a supervision order for one year.