G (A Child)

In a family appeal involving permanent removal of a child, the judgment must state the essential findings, conclusions and reasoning connecting them. The court cannot rely on an adverse history that it has not found proved, or treat uncertainty about the evidence as a reason to reject relatives as carers. Appellate deference to a trial judge does not prevent intervention where a central conclusion conflicts with the judge’s findings, material social-work concerns have been rejected, or the factors supporting the recommendation lack evidential support. The child’s opportunity to grow up within her own family is a crucial consideration and must be addressed. If the defects prevent the appellate court from safely determining the placement, the proper course is a rehearing rather than substitution of its own decision.

H, aged two, had been taken into care after her mother, D, said she could no longer cope. The local authority supported a plan for adoption. H’s maternal grandparents intervened and sought residence and contact, contending that they could care for H within the family. The father and guardian supported the local authority.

His Honour Judge Altman made a care order on 21 February 2005, endorsed the care plan and dismissed the grandparents’ applications. The grandparents, supported by D, appealed. The central issues were whether the judgment adequately explained the findings and reasoning supporting permanent removal, and whether the rejection of the grandparents’ proposal was founded on properly made findings and properly assessed evidence.

Ward LJ delivered the leading judgment, with which Keene and Longmore LJJ agreed. The appeal was allowed and the matter was remitted for rehearing before a High Court judge.

1. Adequacy of reasons. The essential appellate test, identified by Thorpe LJ in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, was whether the judgment sufficiently explained the judge’s findings, conclusions and the reasoning process connecting them. Judge Altman’s reasoning was too opaque to show confidently how the essential findings had been reached or what facts had been placed in the balance.
2. Unproved history. The judge could not rely on the grandparents’ alleged lack of a history of successful parenting when he had expressly declined to make findings about the relevant family history. The local authority bore the burden of proving the facts supporting a care order. Uncertainty about where the truth lay could not properly be converted into an adverse finding against the grandparents.
3. Central risks. The judge did not adequately analyse the extent or manageability of the risk that D might resist the grandparents’ care of H. His concern that Mrs C was not a real partner in the proposed care arrangement was insufficiently explained and did not reflect the grandparents’ actual proposal. The child’s opportunity to grow up within her own family was a crucial consideration but received little or no recognition.
4. Assessment evidence. The judge had not subjected Mrs Draper’s six-factor assessment to proper critical scrutiny. He expressly disagreed with material concerns about the grandparents’ negative view of D and their practice of naturism. The remaining factors were weakened by evidence that the family had previously worked well with professionals, H had thrived in the grandparents’ care, and they had substantial support. The report therefore provided only dubious support for the conclusion.
5. Disposition. Although appellate courts must respect a trial judge’s opportunity to assess witnesses, intervention was justified because the central conclusion conflicted with the judge’s own findings and the reasoning was inadequate. The Court of Appeal could not safely determine the placement itself, so a rehearing was ordered, with further directions to be agreed concerning assessments and the issues for determination.

• Court of Appeal (Civil Division), [2005] EWCA Civ 896: allowed the appeal against the care order and remitted the matter for rehearing before a High Court judge.
• Milton Keynes County Court: on 21 February 2005, His Honour Judge Altman placed H in the local authority’s care, endorsed the adoption care plan and dismissed the grandparents’ applications for residence and contact.