Y (A Child), Re

Satisfaction of the threshold criteria for statutory intervention does not determine which welfare order is proportionate. The court must identify the relevant risk precisely, evaluate the likelihood of its occurrence and analyse the measures capable of mitigating it.

The evidence must permit a rigorous and objective comparison of the available options in accordance with the children’s Convention rights. It must not be restricted to material supporting the local authority’s preferred outcome. Parental dishonesty cannot determine the outcome without analysis of its context, its connection with a likelihood of significant harm and its proper weight in the overall balance.

The mother appealed against care and placement orders concerning her 16-month-old twin daughters. The local authority and Children’s Guardian did not resist the appeal apart from the challenge to the finding that the threshold criteria for statutory intervention were satisfied. The mother accepted that this threshold challenge could not succeed.

The remaining challenge concerned the failure to identify and evaluate the relevant risks, the inadequacy of the evidence about the available options and the proportionality of the orders. The court also considered whether the mother’s dishonesty had been given undue prominence without adequate analysis of its relationship to significant harm.

1. The matter was remitted for an urgent rehearing before a new judge to be allocated with the assistance of the Family Division Liaison Judge for the Western Circuit. The judge at first instance had been entitled to find that the threshold criteria for statutory intervention were satisfied. The mother’s challenge to that finding could not succeed in light of Re B (A Child) [2013] UKSC 33.

2. Per Macur LJ, with whom Arden and Ryder LJJ agreed, satisfaction of the threshold criteria did not resolve the appropriate outcome. The court still had to identify the risk precisely and evaluate its likelihood. Those matters were pertinent to the subsequent assessment of measures capable of mitigating the risk and to the proportionality of the orders sought.

3. The judgment below contained no adequate risk and likelihood assessment. The judge had also lacked evidence permitting a rigorous analysis of the available options in a manner objectively compliant with the twins’ Convention rights. The local authority should have supplied relevant evidence addressing all realistic options. Such evidence must not be confined to material supporting its preferred outcome.

4. The proceedings had become disproportionately focused upon the mother’s dishonesty. Dishonesty could not operate as the sole issue without context. The professionals had not analysed why the particular lies created a likelihood of significant harm to the children or what weight the deceit should receive in the overall balance.

5. The remittal was not merely to correct a procedural defect. The existing evidence was inadequate for the task facing the judge at the rehearing in light of the recent authorities, including Re B-S (Children) [2013] EWCA Civ 1146. Contact between the mother and twins was to be reintroduced in a measured way as soon as possible. Neither the mother nor the respondents could treat the appellate outcome, or the earlier orders, as determining the rehearing.

1. Court of Appeal (Civil Division): The challenge to satisfaction of the threshold criteria was not pursued successfully. The matter was remitted for an urgent rehearing before a new judge, with allocation to be arranged through the Family Division Liaison Judge for the Western Circuit.
2. Taunton County Court: His Honour Judge Bromilow made care and placement orders concerning the twin children.