I (A Child), Re

In child-care proceedings, an appellate court assesses alleged omissions in a judgment against the issues actually argued at first instance. A judge need not give detailed reasons for rejecting an alternative order that was not advanced, particularly where the parties knew the judge’s provisional view and could identify any omission. Before making an adoption order, the court must consider contact, but it need not impose a contact order where carers support contact voluntarily and an order would be unnecessary or positively unhelpful. The court must weigh the advantages and disadvantages and apply the child’s best interests and necessity requirements. Where the judgment is sound, remission for a retrial is inappropriate.

The father and paternal grandmother appealed the February 2012 judgment of HHJ Atkins in care proceedings concerning A, a four-year-old child. They alleged that the judge had failed to consider special guardianship as an alternative to a placement order and had failed, or wrongly declined, to make a contact order. An earlier judgment had ruled out the appellants as potential carers, leaving the child’s future with her foster carers. The appeal therefore concerned whether the judge was required to address special guardianship when that case had not been advanced at trial, and whether his decision to leave contact to the carers’ discretion was lawful and welfare-based.

Thorpe LJ delivered the judgment of the court. Rimer LJ and Baron J agreed. The appeal was dismissed.

1. Special guardianship. The appellants’ principal submission was that the judge should have explained why he preferred a placement order to a special guardianship order. The Court of Appeal rejected the criticism. The question whether the judge had adequately addressed an alternative order had to be assessed against the case actually presented at trial. The appellants had argued against a placement order on the basis of their Article 8 rights, without advancing special guardianship as a fallback position. The judge was therefore not obliged to deal with the alternative more explicitly. The parties had also been aware of his provisional view and had opportunities to identify any alleged lacuna.
2. Contact. The judge had recognised the importance of continuing contact between A and the father and paternal grandmother. He had considered whether a contact order was justified and had carried out the required balancing exercise. Under section 46(6) of the 2002 Adoption Act, contact had to be considered before making an adoption order. Section 1(6) required the court not to make an order where it was unnecessary. Given the foster carers’ positive and consistent approach to contact, an order could be positively unhelpful. Leaving contact to their discretion, while emphasising its importance, was a permissible conclusion in A’s best interests.
3. Appellate disposal. The judgment below was capable of robust defence and contained no material flaw. Remission for a retrial of the choice between placement and special guardianship, involving further live evidence from the carers, would have been undesirable and was not justified.

1. Court of Appeal (Civil Division): On 20 November 2012, the court dismissed the appeal and upheld the February 2012 judgment of HHJ Atkins.
2. Principal Registry Family Division: HHJ Atkins made the relevant placement and contact decisions following hearings in November 2011 and January 2012.