EH v London Borough of Greenwich & Ors

A court considering permanent separation through adoption must conduct a transparent welfare assessment. It must apply the statutory checklists, consider lifelong welfare, and demonstrate that the interference with family life is necessary and proportionate. No less radical measure must adequately protect the child.

An adverse factual finding in care proceedings does not determine welfare automatically. The court must examine what the conduct signifies, why it occurred, the support offered to the parent, and the available alternatives. Where controversial identification evidence is material, the judge should apply the safeguards in Turnbull.

The mother appealed against full care and placement orders concerning two young children. Their father had deliberately injured one child, and the mother had failed to protect the child and initially concealed what had happened. Rehabilitation later depended upon the mother separating from the father.

The judge found that the mother had lied about subsequently meeting the father and concluded that adoption outside the birth family followed. The mother challenged the evidential reasoning and the absence of a structured assessment under the Children Act 1989, the Adoption and Children Act 2002, and article 8 of the Convention.

The central issues were whether the evidence established a continuing relationship and whether the findings justified care and placement orders without further support, investigation, or express welfare and proportionality analysis.

1. The appeal was allowed unanimously. The care and placement orders were set aside. The applications were remitted to the same judge for an urgent, freshly timetabled final hearing after further support for the mother and reassessment by the experts.

2. The judge was entitled to find that the mother and father had met on 18 July and that the mother had lied about that event. The evidence did not, however, safely establish that she was willingly maintaining a continuing emotional relationship or would remain unable to protect the children. A welfare enquiry could not be reduced to a binary choice under which truthfulness required rehabilitation and dishonesty made adoption inevitable. The judge had to examine why the mother lied, what the evidence signified, and whether support or further investigation could enable safe rehabilitation.

3. Per Wall LJ, controversial identification evidence in care proceedings requires the judge to give himself the caution described in R v Turnbull. If a finding of dishonesty is used inferentially, the judge should also consider why the lie was told. Baron J agreed that the Turnbull safeguards should be addressed. Smith LJ took a less critical view of the judge’s identification analysis but agreed that the wider inferences drawn from the evidence were unsafe.

4. The process leading to permanent separation must be transparent and comply with the statutory provisions and article 8. The judge had not addressed the welfare checklist under the Children Act 1989, the lifelong welfare assessment and checklist under the Adoption and Children Act 2002, or whether adoption was necessary and proportionate. Those omissions were serious defects. A brief assertion that welfare demanded adoption could not discharge the judicial duty.

5. The local authority had prejudged rehabilitation and failed to give the mother appropriate help to leave an abusive relationship. Its view had to remain evidence-based and responsive to changed circumstances. That failure could not fairly operate against the mother or the children when the court considered whether the birth family should be permanently separated.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 344, unanimously allowed the mother’s appeal, set aside the care and placement orders, and remitted the applications for an urgent fresh final hearing.
2. Principal Registry of the Family Division: HHJ Hayward Smith QC made full care and placement orders on 9 October 2009, approving a plan for adoption outside the birth family.