K v London Borough of Brent & Ors

When choosing between permanent placement options for a child, the court must undertake an evidenced and reasoned comparison of each option’s benefits, detriments and risks of harm. Permanent removal from the birth family for adoption cannot be justified by a bare assertion that adoption offers stability and security.

The welfare checklist applies when considering both a care order and a special guardianship order. Fairness requires the local authority’s evidence to address the positive and negative features of every realistic placement option. A failure to analyse evidence that removal from an established carer would cause significant emotional harm may invalidate the court’s evaluative judgment.

S, aged 17 months, had lived with her paternal grandmother, K, for most of her life. Her parents accepted that they could not care for her safely and conceded the threshold under section 31 of the Children Act 1989. The principal dispute concerned whether S should remain within her birth family under a special guardianship order or be removed for adoption under the local authority’s care plan.

Her Honour Judge Hughes QC made a care order and refused K’s special guardianship application. K appealed with the support of S’s parents and children’s guardian. The Court of Appeal granted permission on the ground that the decision lacked sufficient evidence and reasoning concerning the competing permanent-placement options. The central issue was whether the judge had adequately compared those options, including the risk of emotional harm caused by removing S from K.

1. Appeal allowed. The care order was set aside and an urgent rehearing directed. Permission was refused on the grounds which could not properly be examined without a record of the oral evidence, and on the ground concerning the judge’s chance observations outside the courtroom.

2. The judge could not choose adoption over placement with K without evidence permitting a proper comparison of the available options. The judgment needed to analyse the benefits and detriments of each placement and the nature and extent of the risk of harm arising from each. Its bare conclusion that the risks of remaining with K were outweighed by the advantages of adoption was insufficient.

3. The children’s guardian had given unaltered evidence that removal would be deeply traumatic, might cause lasting emotional damage and should occur only in extreme circumstances involving a considerable risk of significant harm. The judgment neither identified nor analysed that evidence. It also failed to address the guardian’s view that the risks associated with placement with K could be managed.

4. The welfare checklist was relevant to both the care-order application and the special-guardianship application, applying Re S (A Child) [2007] EWCA Civ 54. The failure to address the checklist and the evidence concerning harm from removal was material to the placement decision.

5. A social worker’s conclusion that adoption would provide security and permanence was not, without supporting factual evidence and professional analysis, a sufficient rationale for permanent removal from the birth family. Fairness required the local authority’s evidence to address the positive and negative features of every available placement option. The absence of a permanence report and adequate comparative evidence left the judge’s choice neither reasoned nor evidenced, thereby vitiating the evaluative judgment.

6. As procedural guidance, case-management orders should record the key issues, the parties’ positions, the child’s timetable, the procedural timetable and the reason for any adjournment or expert appointment. Each party must co-operate with the court to secure compliance. The judge’s undisclosed chance observation of family relationships was ill-advised, but it duplicated ample objective evidence and had only a de minimis effect.

1. Court of Appeal (Civil Division): Permission to appeal was granted on one ground. The appeal was allowed, the care order was set aside and an urgent rehearing was directed. Permission was refused on the remaining grounds.

2. Principal Registry of the Family Division: On 31 May 2013, Her Honour Judge Hughes QC made a care order in respect of S and refused K’s application for a special guardianship order.