W (A Child)

In care and adoption proceedings, the Court of Appeal should not substitute its own welfare assessment merely because the case was finely balanced or the parents had made significant progress. Intervention requires the first-instance judge’s choice to be plainly wrong. Future risk must be assessed against both recent improvement and the history of significant harm to older children, including whether the parents can work openly and cooperatively with professionals. Significant harm remains relevant even where the threshold was met on a comparatively modest basis and the parenting was not deliberate or malevolent. Adoption may therefore be proportionate where the evidence does not provide sufficient confidence in a safe, settled long-term home.

The parents appealed from orders made by HHJ Bond in the Bournemouth County Court concerning their infant daughter. The threshold under section 31 of the Children Act 1989 had been agreed on the basis of the earlier care of the parents’ three older children.

The local authority initially pursued adoption without a fresh assessment of the parents. The judge found that approach procedurally unfair and adjourned the final hearing. After considering further evidence, including the mother’s therapy, the parents’ progress and concerns about honesty and cooperation, he made a care order, dispensed with parental consent and made a placement for adoption order. The central issue was whether that welfare decision was plainly wrong.

Appeal dismissed. Lord Justice McFarlane gave the judgment, with Lord Justice Pill agreeing.

1. The parents accepted that appellate intervention required a conclusion that the judge was plainly wrong. In a finely balanced welfare case, the more finely balanced the choice, the less readily can an appellate court characterise the first-instance decision as plainly wrong merely because another option was available.
2. The agreed threshold under section 31 of the Children Act 1989 was satisfied, so the appeal concerned the welfare decision rather than the threshold. The comparatively modest degree of threshold harm did not make the earlier history irrelevant. The significant emotional and physical harm suffered by the older children remained important in assessing the infant’s future care, even though the parenting had not been deliberate or malevolent.
3. The judge was entitled to evaluate parental progress against that history. The positive evidence concerning the mother’s therapy, the father’s contact and the parents’ work with professionals did not require a favourable outcome. The judge also had to consider whether the parents could be trusted to be open, candid and cooperative with the authorities. The parents’ dishonesty about the father’s dismissal and the mother’s conditional approach to reporting future difficulties were material concerns.
4. The local authority’s earlier closed-minded approach was unfair and may have contributed to a defensive or “bunkered” attitude. However, the final judgment carefully considered that background, the recent improvements and the continuing risks. The judge did not decide the case solely by reference to the recent adverse incidents.
5. The professional evidence and the judge’s own assessment pointed away from returning the child to parental care. The choice of adoption, to provide a safe and settled long-term home promptly, fell within the range of reasonable welfare decisions. There was no basis for concluding that the judge was plainly wrong. The care order, dispensation of consent and placement for adoption order therefore stood.

• Court of Appeal (Civil Division): appeal dismissed; [2012] EWCA Civ 1828.
• Bournemouth County Court: HHJ Bond, in judgments dated 11 and 21 September 2012, made a care order, dispensed with the parents’ consent to adoption and made a placement for adoption order.