W (A Child), Re

On an appeal from a discretionary welfare decision, the appellate court asks whether the judge explained the evaluation sufficiently and whether material factual errors affected it. A judge may reject expert and guardian recommendations where the reasons are cogent and grounded in the evidence. In choosing between adoption and special guardianship, arrangements for the child’s continuing relationship with the birth family may be a fundamental consideration. Welfare predictions are necessarily evaluative, but must rest on a clear appraisal of the history and oral evidence. The statutory welfare checklist concerns the child’s welfare throughout life, not merely during minority.

The mother appealed against a judgment of HHJ Karsten QC, delivered on 1 April 2011, concerning her eight-year-old son, B. B had lived with Mr and Mrs N after the mother’s earlier drug dependence and family difficulties. By the hearing, the mother had reformed her lifestyle and was successfully caring for another child.

The issue was whether B’s long-term placement should be secured by a placement order with a view to adoption or by special guardianship, and how contact with the mother and siblings should be addressed. The trial judge preferred adoption despite changed recommendations from the expert child psychiatrist and the guardian. The appeal challenged his treatment of that professional evidence, his factual findings, and his application of the statutory welfare checklist.

Appeal dismissed. Thorpe LJ gave the judgment of the court; Gross LJ and Baron J agreed.

1. Appellate task. The court treated the appeal as a conventional challenge to a discretionary welfare decision. The question was whether HHJ Karsten had sufficiently explained his rejection of the professional opinions or had made material factual errors. The court found no such error.
2. Expert and guardian evidence. The judge gave cogent reasons for rejecting Dr Holmes’s opinion. He found that the expert had misunderstood B’s understanding of his birth family and had formed a mistaken view that the prospective carers would not facilitate contact without an order. The judge also explained why he found the guardian’s evidence unclear and at points confused. A trial judge may reach a different discretionary conclusion from professional recommendations when the evidence has been carefully evaluated and the reasons are adequately stated.
3. Contact and placement choice. The relationship between the caring family and the birth family, including how contact would be maintained, was a fundamental question. It was therefore legitimate to consider contact in deciding whether adoption or special guardianship better served B’s welfare. The judge was entitled to conclude that the carers’ commitment would support generous and natural contact.
4. Welfare checklist. The judge expressly applied the checklist in section 1 of the Adoption of Children Act 2002 and addressed the relevant subsection headings. He properly considered B’s welfare for the rest of his life, rather than confining the inquiry to his minority.
5. The decision to make a placement order was fully justified on the evidence as evaluated by the trial judge. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal from HHJ Karsten QC’s judgment of 1 April 2011. The Court of Appeal dismissed the appeal.