KN v Caerphilly County Borough Council & Ors

An appellate court will not interfere with a first-instance welfare decision merely because it might have assessed the evidence differently. In the absence of a misdirection, error of principle, or an omission or inclusion of a material factor, intervention is available only if the judge was plainly wrong.

In determining a child’s welfare, a serious future risk of emotional harm caused by entrenched family conflict may outweigh the advantages of preserving a secure attachment to a relative carer. Where a judge has properly applied the relevant adoption welfare checklist and no material circumstances have changed, the judge may rely substantially on an earlier welfare evaluation when making a placement order. Contact arrangements must serve the child’s integration into an adoptive family.

E had lived with his paternal grandmother since his hospital discharge as an infant. In care proceedings, the High Court found that his mother had inflicted non-accidental injuries. The remaining welfare issue was whether E should remain with his grandmother under a special guardianship order or be adopted outside the family.

The Deputy Judge rejected the grandmother’s proposal to relocate with E. He approved a care plan for adoption, made a care order and later made a placement order. He declined to make a contact order under section 26 of the 2002 Act, accepting contact provisions in the care plan. The grandmother appealed, supported in material respects by E’s father. The central issue was whether the Deputy Judge’s welfare decisions were plainly wrong.

1. The appeals were dismissed. Munby J gave the court’s judgment. Lawrence Collins LJ and Thorpe LJ agreed.

2. The Deputy Judge had made no legal or principled error. He had taken account of the relevant matters and excluded no relevant consideration. The Court of Appeal could therefore intervene only if his welfare evaluations were plainly wrong. They were not.

3. The Deputy Judge was entitled to find that E faced both a risk of physical harm from his mother and, more significantly, a serious risk of emotional harm from continuing conflict between the maternal and paternal families. He had properly balanced that risk against E’s powerful attachment to his paternal grandmother and the disruption adoption would cause. He was entitled to prefer the evidence of the independent social worker and guardian to Professor Ostapuik’s qualified recommendation, because he was not satisfied that the grandmother’s proposed physical and emotional break from the family conflict was viable in the long term. Further delay to test that plan could itself create further uncertainty and disruption.

4. On the placement order, the Deputy Judge had directed himself meticulously by reference to the welfare checklist in the 2002 Act. Although that checklist differed from the earlier one, he was entitled to be heavily influenced by his prior welfare decision because there had been no material change in the relevant circumstances. Refusing the placement order necessary to implement the approved adoption plan would have been close to perverse.

5. The Deputy Judge was also entitled to approve the care-plan contact arrangements and to make no order under section 26. Continuing contact with E’s father and paternal grandmother was desirable if a placement permitting it could be found. However, it had to give way if necessary to the overriding need to secure an adoptive placement outside the family. The local authority could be relied on to honour its stated commitment.

• Court of Appeal (Civil Division): The grandmother’s appeals against the refusal of special guardianship, the care order, the placement order, and the refusal of a contact order were dismissed: [2007] EWCA Civ 264.

• High Court, Family Division: A Deputy High Court Judge dismissed the grandmother’s special guardianship application, approved a care plan for adoption outside the family and made a care order. He subsequently made a placement order and declined to make a section 26 contact order.