H (Children), Re

In care and placement proceedings, a judge must assess identified uncertainties rather than merely list them. Where expert recommendations are rejected, the judgment must give a clear and cogent explanation for that departure. The court must also address the family-life rights of the children and parents and carry out the necessary balancing exercise. A placement order does not follow automatically from a care order. It requires proper preparation and a process that respects the parents’ Article 6 rights.

The local authority obtained care and placement orders in respect of three children from Sunderland County Court, where HHJ Wood decided that the children should not be returned to their mother. The mother appealed after permission had been refused below. The evidence included expert opinions supporting a rehabilitative course, notwithstanding concerns about the mother’s history of schizophrenia, domestic violence and the children’s resistance to rehabilitation.

The appeal concerned whether the judge had adequately analysed the uncertainties, explained his departure from the expert recommendations, balanced the children’s and mother’s family-life rights, and followed a proper process before making placement orders.

1. Appeal allowed. The care orders were unsustainable because the judge had treated the possibility of relapse as an uncertainty without assessing its likelihood. That assessment required primary weight to be given to the evidence of the only expert psychiatrist.
2. A judge who departs from relevant expert recommendations must give a clear and cogent explanation for rejecting them and taking a different view. Any concern about the children’s antipathy to rehabilitation needed to be analysed expressly.
3. The judgment failed to recognise or balance the Article 8 family-life rights of both mother and children. The importance of children being brought up by their birth mother required careful explanation before that relationship was permanently displaced.
4. The placement orders were equally unsustainable. A placement order does not follow automatically from a care order. Where it overrides parental objection, it must be preceded by proper preparation and processes respecting the parents’ Article 6 rights. Here the application had not been properly prepared, no guardian’s report had been filed, and the issue had not been the subject of a proper trial.
5. Although unnecessary representation on an appeal should generally be discouraged, that does not fetter children’s representatives’ responsibility to make firm, independent submissions at a full appeal hearing.

• Court of Appeal (Civil Division) — appeal from care and placement orders made by Sunderland County Court, sitting through HHJ Wood, on 20 February. The Court of Appeal allowed the appeal.
• Permission stage — an unsuccessful application for permission to appeal below was followed by an appellant’s notice and directions from Black LJ on 22 March for a full hearing.