G (A Child)

After the statutory threshold for public intervention is crossed, the court must undertake a global and holistic welfare evaluation. It must compare every realistic care option side by side, weighing the internal advantages and disadvantages of each. A linear process which eliminates less interventionist options and selects the last remaining option is inadequate.

Any interference with family life must be necessary and proportionate. The required justification increases with the severity of the proposed intervention. The court must therefore evaluate the harm associated with removal, including long-term separation and public care, as well as the risks of parental care.

An appellate court reviewing such an order asks whether the determination was wrong, rather than plainly wrong, and must demonstrate an effective review of proportionality.

A district judge made a full care order for a boy with autism, learning disabilities, hyperactivity and epilepsy. The local authority’s plan was long-term foster care for the remaining ten years of his minority. His mother had twice left him with social services, but loved him, shared a strong bond with him and had received an initially favourable parenting assessment.

The mother conceded that the threshold in section 31 of the Children Act 1989 was met. She nevertheless sought rehabilitation under interim care orders or a supervision order. Her first appeal was dismissed by a circuit judge, who held that the district judge had sufficiently balanced the evidence.

The second appeal concerned whether the first-instance court had compared the realistic welfare options and assessed proportionality, and whether the circuit judge had conducted the effective appellate review required in public law children proceedings.

1. Appeal allowed unanimously. McFarlane LJ, with whom Davis and Longmore LJJ agreed, held that the district judge had failed to undertake the required welfare balancing exercise. The circuit judge should therefore have allowed the first appeal. The care order was set aside, the former interim care order was reactivated for an initial 28 days, and the application was remitted for rehearing before a fresh circuit judge.

2. Once the threshold in section 31 of the Children Act 1989 is established, the court must determine the child’s future arrangements through a global and holistic welfare evaluation. Each realistic option must be examined in sufficient detail, including its own advantages and disadvantages, and then compared side by side with the alternatives. A linear approach which rejects each less interventionist option in turn and selects the most interventionist option merely because it remains is legally inadequate.

3. The welfare checklist requires genuine comparison. The court must assess the positive and negative effects of each change in circumstances, the risks of harm under parental and local-authority care, and the respective capacities of the parent and local authority to meet the child’s needs. The authoritative formulation in J v C [1970] AC 668 requires all countervailing considerations to be placed in the balance.

4. The proportionality principles in Re B (A Child) [2013] UKSC 33 extend beyond adoption to lesser forms of state intervention. Their application must, however, reflect the intervention’s severity. Long-term fostering for most of a child’s remaining minority requires an active assessment of why separation is necessary. Formulaic references to necessity, proportionality or the draconian character of removal do not replace substantive evaluation.

5. The district judge had concentrated upon the mother’s shortcomings without evaluating the detriments of long-term foster care, the likely weakening or loss of the strong maternal bond, or the possibility of a supervision order supported by local-authority assistance. Correcting the draft judgment to record that the mother sought a supervision order did not demonstrate that this option had been considered.

6. An appellate court reviewing the proportionality of a care order must ask whether the determination was wrong, not whether it was plainly wrong. Its role remains one of review rather than a fresh proportionality determination, but the review must be effective and must demonstrate compliance with section 6(1) of the Human Rights Act 1998. The circuit judge’s failure to review the omitted welfare comparison and supervision-order option was an error of law.

1. Court of Appeal (Civil Division): In G (A Child) [2013] EWCA Civ 965, allowed the mother’s second appeal, set aside the full care order, reactivated the interim care order and directed a rehearing before a fresh circuit judge.
2. Principal Registry of the Family Division: Her Honour Judge Hughes QC dismissed the mother’s first appeal on 23 July 2012.
3. Inner London and City Family Proceedings Court: District Judge Tempia made a full care order on 30 April 2012, approving a plan for long-term foster care.