M-H (A Child)

When a care court determines a child’s permanent future, the child’s welfare requires an exhaustive investigation of the available placement options. A judge may make robust factual findings and decide matters within judicial competence. However, the exercise of discretion ordinarily requires competent social work evidence which the judge can appraise, accept or reject.

Where the local authority’s viability assessment of a potential family carer is acknowledged to be seriously flawed, the court cannot substitute its own assessment or rely on a guardian who has not undertaken a full assessment. Refusing a necessary independent assessment leaves a material evidential gap. That procedural failure vitiates the welfare decision where the omitted evidence could affect the choice between adoption and placement within the family.

The appellant was caring successfully for an older child who was the half-brother of K, the child concerned in care proceedings. He sought assessment as a potential carer for K after the child’s mother became unable to provide care and the local authority proposed adoption.

HHJ Bloom QC found that the local authority’s viability assessment was wholly inadequate and flawed. Nevertheless, he refused an independent assessment, made a final care order under section 31 of the Children Act 1989, and authorised K’s placement for adoption. He believed that the guardian and the evidence at trial supplied sufficient material.

The appellant challenged the care and placement orders. The central issue was whether the refusal of an independent viability assessment left a material gap in the evidence required for a proper welfare determination.

Appeal allowed unanimously. Wall LJ delivered the judgment, with which Carnwath and Thorpe LJJ agreed.

1. The judge was plainly wrong to refuse the independent viability assessment. He had correctly found the local authority’s assessment wholly inadequate and flawed, yet proceeded without obtaining the further professional evidence which that finding required.

2. The guardian had neither performed nor proposed to perform a full assessment of the appellant. The judge was therefore under a serious misapprehension when he relied on her work to remedy the local authority’s deficient assessment. His assertion that no further social work assessment could alter the position was unjustified because the relevant information had never been obtained.

3. K’s interests required an exhaustive investigation of his welfare needs and the available placement options. Although a family judge may make robust findings, assess credibility and determine matters within judicial competence, the exercise of discretion in care proceedings draws upon several disciplines. Competent social work assessments are an essential input for the judge to appraise. Producing such an assessment is not itself a judicial function.

4. The missing assessment was important because the decision would determine the pattern of K’s future life. The evidential gap vitiated the welfare decision and rendered the exercise of discretion flawed. This ground alone required the orders to be set aside.

5. The court did not decide whether, when applying section 1(3)(e) of the Children Act 1989, a judge may consider incidents not proved on the balance of probabilities. The interaction between Re M and R [1996] 2 FLR 195, Re O and Re N, Re B [2001] 1 FLR 1169 and the later explanation by Ryder J could await a case in which the issue was central.

6. The final care order was set aside and replaced by an interim care order. The placement order was to be set aside or suspended. An independent viability assessment was directed, followed by a hearing before a judge other than HHJ Bloom QC.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1864, the court unanimously allowed the appeal, set aside the final care order, substituted an interim care order, set aside or suspended the placement order, and directed an independent viability assessment.
2. Manchester County Court: HHJ Bloom QC refused an independent viability assessment and made a final care order under section 31 of the Children Act 1989 together with an order authorising placement for adoption.