G (A Child)

In care proceedings, a court considering future harm must separate the likelihood of each stage in a chain of contingent risks from the seriousness of the harm if it occurs. It must assess how the risks interact and explain its conclusions by reference to the evidence. The response must be proportionate: adequate present parenting and a significant risk of future harm do not, without more, require a care order with adoption. The court must balance existing care against identified risks and ask whether they are so high that the child’s welfare requires alternative family care. A judgment need not be lengthy or technical, but it must identify, evaluate and explain the risks and the reasoning leading to the order. Failure to do so warrants appellate intervention and rehearing.

Care proceedings concerning H, a child born on 7 March 2006, came before HHJ Darroch in the Norfolk County Court. An earlier fact-finding hearing had been inconclusive, and the final hearing proceeded on admitted matters and the local authority’s revised case. The experts and guardian accepted that the parents could meet H’s emotional and physical needs at present, but identified possible future risks arising from relationship breakdown, parental emotional instability and consequent harm.

HHJ Darroch made a care order, approved a plan for adoption and made a placement order. The parents appealed, challenging the treatment of the expert evidence and the judge’s analysis of the sequential risks and proportionality. The central issue was whether the judgment adequately explained why alternative family care was required.

Appeal allowed. The matter was remitted for a rehearing before a different judge.

1. In applying the risk and proportionality framework identified in Re C & B (Children) [2000], the court must distinguish the degree of risk that an event will occur from the gravity of the harm if it occurs. It must assess each stage of a contingent sequence of risks and the consequences of one risk becoming reality before the next is considered.
2. The court must then conduct an adequate proportionality assessment. It must balance the fact that the parents are currently meeting the child’s needs against the risk of future harm. A significant risk does not automatically justify a care order whose plan is adoption. The relevant question is whether the risks are so high that the child’s welfare requires alternative family care.
3. The judge must explain the findings on each material risk, evaluate those risks by reference to the evidence, and articulate the reasoning leading to the final order. The judgment need not be long or technical; plain and accessible language may be preferable. It must nevertheless enable the parents and an appellate court to understand what findings were made and why.
4. The Court of Appeal was required to avoid finding error through over-refined textual analysis, as illustrated by Pigloska v Pigluski. This case went beyond that concern. The judgment did not adequately explain the route from general assertions of danger and uncertainty to the conclusion that adoption was required. The Court of Appeal could not determine whether the decision was right or wrong on the merits.
5. The application was granted, the appeal was allowed and the case was remitted for hearing afresh by a different judge.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the matter for a rehearing before a different judge.
• Norfolk County Court: On 26 January 2007, HHJ Darroch made a care order, approved a plan for permanency through adoption and made a placement order.