H (A Child), Re

An appellate court should exercise considerable caution before interfering with a trial judge’s welfare assessment. Welfare decisions involve numerous factors, including personal impressions and matters that cannot all be fully expressed in the judgment. A judge may adopt an unusual arrangement, involving risk, delay or further moves, if the relevant alternatives and consequences have been properly considered. The test is whether the decision falls within the generous ambit of the judge’s discretion. Professional disagreement or tentative support does not by itself make the decision impermissible.

Warwickshire County Council appealed against an order made by HHJ Bellamy in care proceedings concerning JP, aged about 13 months. The local authority sought care and placement orders leading to adoption, relying particularly on the mother’s seriously inadequate care of her first child. The judge instead adjourned the proceedings, ordered an independent social work assessment of Mr and Mrs F, and made interim residence and supervision orders so that JP could live with them and his mother while further therapeutic work took place. The central issue was whether the judge had exceeded the generous ambit of his welfare discretion by accepting a placement with uncertain prospects and potential delay and disruption.

Hedley J gave the judgment of the court. Thorpe LJ and Lewison LJ agreed. The appeal was dismissed.

1. The judge’s order was unusual and exposed JP to risks, including the possibility of further moves and delay. The professional evidence largely opposed the proposal. Dr Shortland regarded its prospects as no better than even, although she considered it a serious option. The judge nevertheless had to choose between permanent removal for adoption and a further opportunity for JP to remain within his family with an unusually strong support network.
2. An appellate court must exercise caution when reversing a trial judge’s evaluation of facts. The expressed findings are necessarily incomplete and may not capture the emphasis, relative weight, qualifications and nuances derived from the primary evidence. This caution applies with even greater force to welfare assessments, because numerous factors influence the overall evaluation and cannot all be articulated. The court relied on Lord Hoffmann’s observations in Piglowska [1999] 2 FLR 763.
3. The trial judge was entitled to deal with the individual circumstances of the case, provided he remained within the generous limits of his discretion. He had recognised the tentative professional support, the limited prospects of success, the risks of delay and disruption, the age of Mr and Mrs F, and the consequences if the arrangement failed. He had also built safeguards into the order, including a warning to the mother and restrictions on her moving without the court’s permission.
4. Although the judge was approaching the limits of his discretion, his decision was logical, humane and carefully reasoned. It was based substantially on his assessment of the mother and Mr and Mrs F, matters for which the trial judge was particularly well placed. The order was upheld and the appeal dismissed.

• Court of Appeal (Civil Division): In H (A Child), Re [2012] EWCA Civ 1700, the appeal was dismissed and HHJ Bellamy’s order was upheld.
• Coventry County Court: HHJ Bellamy adjourned the care proceedings, directed an independent social work assessment, and made interim residence and supervision orders instead of the care and placement orders sought by the local authority.