B (Children: Long Term Foster Care)

Where a care-order decision is finely balanced, the judge must conduct an exacting review of the evidence, make precise findings on pivotal matters, and explain fully the route to the welfare determination. Material allegations which cause a local authority to change its care plan require sufficient analysis and clear findings, particularly where the evidence is hearsay or otherwise untested.

A mixed family history cannot be reduced to an uninformative summary. The judgment must evaluate both favourable and adverse evidence so that the basis for removal into long-term foster care is transparent.

The mother appealed care orders made by HHJ Scarratt in the Canterbury County Court in respect of her two sons. Earlier in the proceedings, the local authority had supported supervision orders under which the boys would remain with their mother. It later changed its plan to foster care following further allegations concerning her parenting, her relationship with Mr SB, and incidents in September 2013.

The judge made care orders. The mother contended that the change in the local authority’s position had not been properly scrutinised and that the findings about the September incidents rested on inadequate evidence. The Court of Appeal considered whether the judgment contained an adequate evidential analysis and explanation for the welfare decision.

1. Appeal allowed. The care-order determination could not stand and the case was to be reheard by a different judge.

2. The Court did not decide that the evidence was incapable of justifying care orders. That question remained for the new trial judge, on the existing evidence and any further evidence concerning subsequent events.

3. The local authority’s move from a plan for supervision orders to one for foster care was central to the decision. The judge did not sufficiently analyse the significant allegations which prompted that change, or make clear findings as to what had occurred and what weight could properly be placed on the material. The error concerning Mr SB’s convictions also required explicit treatment, because a criminal record alone did not establish that he was unsuitable to be in contact with the children.

4. The findings on the September incidents required a more detailed evaluation of the available evidence. In particular, where a pivotal allegation depended on hearsay, the judgment needed to recognise that character, analyse the parent’s account, and explain why the finding was made.

5. The background history was materially mixed. A short summary which omitted both the positive and adverse features did not provide an adequate foundation for the welfare decision. In a finely balanced case, the more exacting must be the evidential review, factual findings and explanation of the route to the determination.

• Court of Appeal (Civil Division): Allowed the mother’s appeal in [2014] EWCA Civ 1172. The care-order determination was remitted for rehearing before a different judge.
• Canterbury County Court: HHJ Scarratt made care orders for the two boys on 30 October 2013.