M (Children), Re

In care proceedings, a decision to separate children from parental care for the long term requires a rigorous, individualised welfare analysis. The court must consider all realistic placement options holistically, supported by proper evidence and analysis for and against each option. The more finely balanced the case, the more exacting the findings and explanation must be. Labels such as emotional attunement cannot replace analysis of the underlying behaviour and the children’s needs. Statistical evidence of relapse may inform the decision, but cannot by itself determine whether a particular parent can provide adequate care. An appellate court may allow an appeal for inadequate reasoning without deciding which placement is ultimately best.

Following care proceedings, His Honour Judge Serota QC made special guardianship orders securing the two children’s placement with their foster carers. The father and mother each sought permission to appeal. The father challenged the assessment evidence, the use of emotional attunement, refusal of Video Interactive Guidance and the failure to evaluate alternative placements. The mother challenged reliance on statistical relapse rates and the limited reasoning on contact. The central issue was whether the judge had adequately analysed the realistic options and explained why permanent separation from each parent was necessary.

Permission to appeal was granted to each parent, and both appeals were allowed. The Court of Appeal did not decide whether the children should live with the father, the mother or their special guardians.

1. The judge had correctly directed himself by reference to Re B-S [2013] EWCA Civ 1148, but had not carried out the required holistic evaluation of all realistic options, supported by proper evidence and analysis for and against each option. Given the long-term consequences of the orders, the judge should also have used a full welfare-checklist analysis, including the children’s needs and the losses involved in a familial placement.
2. The father’s case was finely balanced. The judge had criticised the second FAST assessment and placed little reliance on it, but had relied on professional evidence without adequately identifying the factual substance of the alleged deficit in emotional attunement. The label could not substitute for an analysis of the underlying conduct, the father’s positive features and the competing placement options.
3. The court applied the standard stated in Re B [2014] EWCA Civ 1172: the more finely balanced the decision, the more exacting the treatment of evidence, pivotal findings and the explanation of the route to the conclusion. The judgment did not meet that standard.
4. In the mother’s case, relapse risk could be relevant, but the judge had effectively adopted statistical percentages without sufficiently evaluating the mother’s individual evidence and circumstances. That reasoning did not explain why separation from her was necessary.
5. The reference to Part 25 of the Family Procedure Rules 2010 concerned the earlier finding that a further parenting assessment was necessary. The Court of Appeal did not finally determine whether further assessment or Video Interactive Guidance should be ordered. The case was to be reconsidered on current evidence before a Circuit Judge allocated through the local Family Division Liaison Judge, and was not to return to Judge Serota.

1. Family Court (Watford): His Honour Judge Serota QC made special guardianship orders placing the children with their foster carers.
2. Court of Appeal (Civil Division): Ryder LJ adjourned the parents’ permission applications to the full court. Permission was granted and both appeals were allowed: [2014] EWCA Civ 1753. The placement decision was left for reconsideration on the evidence as it stood at the rehearing.