L-B (Children)

In care proceedings, a decision to remove children from their family must be based on a sufficiently reasoned welfare evaluation. The judgment should engage with relevant expert and guardian evidence, the children’s individual rights and needs, and the proportionality of removal, balancing risks in the family against risks in the care system. A discretionary welfare decision cannot be recast as a finding of fact to avoid that analysis. Where a placement order has been made without addressing the need to dispense with parental consent, the order is irregular and the issue must be remitted. Interim arrangements may remain while treatment and assessment continue, but removal requires consent or a further court order.

Local authority care proceedings concerned several children of JB. Following a trial in June 2010, His Honour Judge Altman announced conclusions in August and subsequently delivered an extempore judgment and a supplementary judgment. The orders included interim care orders for B and M, a risk assessment concerning them, and placement orders concerning other children.

The mother appealed, alleging inadequate reasoning, insufficient analysis of expert and guardian evidence, failure to evaluate the children’s evidence and welfare needs, and failure to address the statutory requirements for placement orders. The central questions were whether the judgment was legally and analytically sufficient and whether the orders for removal or placement could stand.

Disposition. Lord Justice Thorpe delivered the leading judgment. Lady Justice Smith and Lord Justice Patten agreed. Permission to appeal was granted and the appeal was allowed.

1. The judge’s extempore and supplementary judgments were inadequate. They did not sufficiently record or analyse the competing expert opinions, the guardian’s proportionality case, the mother’s oral evidence, or the guardian’s evidence. The judgment also failed to provide the structured analysis required by the statutory checklist in the Children Act 1989 and the Children and Adoption Act 2002.
2. The decisions concerning B and M were discretionary welfare decisions, not findings of fact. The judge’s description of them as findings of fact could not cure the contradiction between the conclusions announced on 13 August and those stated on 25 August.
3. Removal of B and M could not be justified on the professional evidence. Their age, rootedness in the family, good progress at school and happiness at home had to be balanced against the substantial risks and uncertainty of placement in the care system. The court could not see sufficient evidence to justify their removal.
4. The interim care orders and the risk-assessment direction concerning B and M were set aside. The placement orders concerning J and F were also set aside. The issue of O’s future was remitted to the county court, including the question whether parental consent should be dispensed with and whether adoption or long-term fostering, and joint or separate placement with S, was appropriate.
5. Interim orders could remain for R, J, F and Z during the mother’s three-month treatment and assessment period. Their longer-term futures would depend on her performance and the subsequent assessment. There was to be no removal without the mother’s consent or a further court order.

• Court of Appeal (Civil Division): Permission to appeal granted; appeal allowed under [2010] EWCA Civ 1463.
• Principal Registry of the Family Division, His Honour Judge Altman: Following care proceedings and a trial in June 2010, the court made interim care, risk-assessment and placement orders after judgments delivered in August 2010.