A (A Child) v A Local Authority (Rev 2)

A decision to move a child from a family placement to foster care at an interim stage is a discretionary welfare decision. An appeal will not succeed merely because another judge might have preferred a protective plan preserving continuity. The question is whether the judge’s choice was legally flawed or inadequately reasoned.

The lower judgment must be read as a whole. Cumulative concerns about a carer’s appreciation of risks, drug use, honesty and co-operation may justify removal without waiting for a specific incident. The court must nevertheless give proper weight to secure care already provided and the emotional and psychological harm caused by removal.

The child was placed urgently with the maternal aunt after the mother died and the father faced a murder charge. The local authority initially supported the family arrangement but later sought to move the child to foster care under an interim care order.

Following hearings in August 2011, His Honour Judge Heaton QC endorsed the local authority’s revised care plan. The aunt’s application for permission to appeal was refused below. Hughes LJ granted permission on one ground: whether immediate removal from a family member had been justified on the interim application. The central issue before the Court of Appeal was whether the judge’s discretionary choice was legally sustainable.

1. Appeal dismissed. The Court of Appeal upheld the decision to endorse the local authority’s revised care plan and the consequential removal of the child from the aunt’s day-to-day care.
2. The legal test was not disputed. His Honour Judge Heaton QC had directed himself by applying the test in Re LA. The real question was whether the aunt could show that the judge’s reasoned discretionary choice was vitiated by error or could not reasonably be supported. The fact that another judge might have preferred a protection plan allowing the family placement to continue was insufficient.
3. The judge’s conclusion could not be assessed by isolating paragraph 178 of his judgment. Read in context, the analysis considered the full evidential picture, including the aunt’s understanding of domestic-violence risks, recreational drug use, and ability to be frank and co-operate with professionals. The risk assessment was not confined to the fact that the individual posing a particular danger was in custody. It was legitimate to consider cumulative concerns about the aunt’s appreciation of risk and continuing failure to disclose important information.
4. The judge had also applied the welfare checklist. He gave proper weight to the good day-to-day care provided by the aunt and to the inevitable emotional and psychological harm which removal would cause. His comprehensive judgment therefore withstood the criticisms advanced on appeal.
5. Lord Justice McFarlane added guidance for the future. The aunt should continue participating in the assessment process and maintaining contact with the child. The local authority should rebuild a working relationship with her and communicate properly. Lord Justice Thorpe associated himself with those observations and urged sensitive handling of the removal and generous contact. Those observations did not affect the dismissal of the appeal.

• Court of Appeal (Civil Division) — Permission was granted by Hughes LJ on one ground. The appeal was dismissed on 6 October 2011.
• Leeds District Registry — His Honour Judge Heaton QC, in a judgment handed down on 25 August 2011, endorsed the local authority’s revised care plan for the child. Permission to appeal was refused by the circuit judge.