O (A Child), Re

In child placement appeals, the question is whether the trial judge was entitled to make the order on the evidence available at the time, not whether the appellate court would have chosen a different course. A carefully reasoned welfare decision in a finely balanced case will stand if it falls within the judge’s discretion and is not plainly wrong. Procedural fairness does not necessarily require legal representation for prospective carers or a further specialist assessment. Where they participated, were made parties, gave evidence and had their case advanced in submissions, the proceedings may be fair. A social work assessment may suffice where the central questions fall within social work expertise.

The mother of two young children accepted that she could not provide a suitable future for the younger child. The child’s maternal aunt and her partner, who were successfully caring for the older sibling, sought placement of both children with them. Two viability assessments opposed that proposal. The appellants challenged the resulting placement decision, relying on their late party status, lack of legal representation, alleged limitations in the expert evidence, and the failure to consider a gradual trial of contact and placement.

The Manchester County Court judge preferred the professional evidence and declined the proposed family placement. The Court of Appeal considered whether the proceedings had been procedurally unfair and whether the judge’s decision was outside the proper range of welfare decisions.

Disposition. Permission to appeal was granted, but the appeal was dismissed.

1. The appellate question was whether the trial judge was correct, or at least entitled, to make the order on the evidence available when it was made. In a finely balanced welfare case, the fact that the conclusion was not inevitable did not place it outside the judge’s discretion. The Court of Appeal could not interfere merely because a different approach might have been preferable. The decision was not plainly wrong.
2. The absence of legal representation for the prospective carers was concerning, but did not itself invalidate the proceedings. They had participated in interlocutory hearings, challenged the first assessment, obtained a second independent assessment, were made parties at the final hearing, attended the trial and gave evidence. Their case was also advanced forcefully in closing submissions by counsel instructed for the mother. They had therefore been properly heard and the proceedings were procedurally fair in Article 6 terms.
3. The critical questions were whether the proposed carers could meet the needs of both children and whether placing the children together would create unacceptable risks. Those were essentially social work questions. A mental health or educational psychology report might have been helpful, but an updated specialist assessment was not essential where the judge had properly admissible evidence and gave a careful, balanced judgment.
4. The proposed gradual trial of sibling contact and placement did not demonstrate fundamental procedural unfairness. The judge had all the available options before him and was entitled to prefer the professional evidence. The order was accordingly upheld.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 876, the court granted permission to appeal but dismissed the appeal.
2. Manchester County Court: His Honour Judge Hernandez conducted the final hearing and declined the proposed placement of the younger child with the appellants, relying on the professional evidence.