P (A Child)

In care and adoption proceedings, the threshold may be satisfied by evidence that a child was exposed to a volatile parental relationship and serious allegations, without the court deciding whether allegations of violence were true.

An appellate court focuses on substance rather than form. A judgment is not necessarily invalid because it omits express references to statutory checklists or fails to separate each stage of the welfare analysis, provided the essential questions can be identified from the judgment and evidence. Adoption requires necessity and proportionality. It must be the outcome where nothing else will secure the child’s welfare, rather than merely the preferable outcome.

The father appealed against care and placement orders made by Mr Recorder Bullock in the Newcastle-Upon-Tyne County Court on 31 July 2013 concerning his daughter, S. The care plan was adoption. The appeal challenged the Recorder’s findings, the adequacy and structure of his judgment, his assessment of the father as a sole carer, and his failure expressly to address several statutory requirements and parental consent.

By the time of the appeal, S had lived with prospective adopters for about 14 months. The central issue was whether the Recorder’s acknowledged omissions required the orders to be set aside and the case reheard.

Appeal dismissed. The Recorder’s finding that developmental delay was attributable to the care provided by the parents could not properly stand because the evidence did not satisfy the proper burden and standard of proof. That finding was unnecessary, however. The evidence of the parents’ volatile relationship, including serious allegations of violence and rape which were made and retracted, was sufficient to establish that S had suffered or was at risk of significant emotional harm. The court did not need to determine whether the allegations were true or whether the father had actually been violent.

The Court of Appeal applied the appellate approach in Re B [2013] UKSC 33. In child welfare cases the trial judge has a substantial advantage from having seen and heard the witnesses and assessed the prospective carers. In pre-Re B-S cases, the court must examine substance rather than form and read the judgment fairly as a whole, following Re W [2013] EWCA Civ 1177. Formal omissions are not automatically fatal if the judgment and evidence engage with the essence of the case and answer the key questions.

The Recorder should have addressed separately the care and placement applications, the welfare checklist and factors, and the question whether parental consent should be dispensed with. Those omissions were significant, but the necessary welfare analysis could be reconstructed. The evidence addressed the available options, including the father’s strengths and weaknesses, and the Recorder gave reasons why rehabilitation to him was not in S’s interests. His acceptance of the Guardian’s recommendation was permissible; reasons would have been required had he rejected it, applying Re J [2001] 2 FCR 44.

The Recorder directed himself that adoption must be necessary and proportionate and that nothing less would suffice. Once rehabilitation to either parent was rejected, there was no realistic family alternative and S required a secure, stable and permanent home. The Court of Appeal concluded that the outcome was inevitable on the properly made findings and that the Recorder could not be said to have been wrong.

• Court of Appeal (Civil Division) — The father’s appeal against the care and placement orders was dismissed: [2014] EWCA Civ 1648.
• Newcastle-Upon-Tyne County Court — On 31 July 2013 Mr Recorder Bullock made care and placement orders concerning S, with adoption as the care plan.