M (A Child), Re

In a child welfare appeal, the appellate court must respect the trial judge’s evaluative function. It should intervene only where the judge failed to consider relevant matters, misunderstood the evidence or reached a decision outside the range reasonably open to him.

Care and placement for adoption are measures reserved for cases in which no less drastic arrangement will do. The court must evaluate the competing risks, including the harm arising from adoption and the child’s relationship and wishes, while recognising that a parental placement may remain appropriate despite identifiable future risks.

A guardian’s advice is not determinative. The judge may decline to rely on it where the report is materially unbalanced or fails to evaluate the relevant alternatives.

The guardian appealed against a decision of Recorder Farquhar at Birmingham Civil Justice Centre on 28 August 2013. The Recorder refused Birmingham City Council’s applications for care and placement orders concerning S, and instead made a residence order in favour of M, S’s mother, with a supervision order in favour of the local authority for the area where they would live.

The guardian did not challenge the Recorder’s factual findings. She argued that he had failed to weigh the risks properly, placed undue weight on S’s relationship with M, wrongly relied on evidence of M’s alleged improvement, and made orders that were not reasonably open to him. The appeal also raised whether new evidence concerning events after the Recorder’s decision should be admitted.

1. Disposition. The Court of Appeal dismissed the guardian’s appeal. Black LJ gave the judgment, with Gloster LJ and Patten LJ agreeing.
2. Fresh evidence. The guardian was not permitted to rely on a later statement to demonstrate that the Recorder had been wrong. An appeal normally considers the material available to the first-instance court. Later evidence may exceptionally be relevant in children’s appeals, but the evidence here was disputed and no matter was shown to be sufficiently significant to require reconsideration of the Recorder’s decision. The appellate court was not equipped to resolve the disputed factual issues.
3. Appellate restraint. The Recorder had heard the evidence, made the necessary findings and assessed the weight of the competing factors. The Court of Appeal would not interfere merely because another evaluation was possible. The risks identified did not make the chosen orders irrational or a decision that no reasonable judge could have made.
4. Welfare evaluation. The Recorder was entitled to find that M had changed, while recognising continuing uncertainty and risks, including her association with Mr B and her lack of openness. He properly considered the emotional harm S had suffered, the possible emotional harm from adoption, S’s relationship with and wishes concerning M, and the prospects of a successful placement. Adoption was appropriately treated as a solution reserved for cases in which nothing else would do.
5. Guardian’s evidence. The Recorder was entitled to reject the guardian’s advice. Her report gave insufficient attention to S’s relationship with M, S’s wishes and feelings, the positive evidence about M, and the risks associated with adoption. It was therefore open to the Recorder to regard it as lacking balance.
6. The making of a residence order with a supervision order was not inconsistent with the Recorder’s observation that the case did not enter the public law sector. Nor was the order invalid because of the criticisms advanced concerning the care plan, reasons or local authorities’ views.

• Court of Appeal (Civil Division): appeal dismissed; the guardian was refused permission to rely on further evidence for the appeal. [2014] EWCA Civ 226.
• County court, Birmingham Civil Justice Centre: Recorder Farquhar refused care and placement orders and made a residence order to M with a supervision order.