MW v Hertfordshire County Council

A welfare decision in care proceedings requires a fact-specific evaluation of every relevant factor in the welfare checklist. Family ties are an important part of a child’s background and characteristics, but there is no rule that family placement overrides all other welfare considerations.

A children’s guardian is not a neutral advocate to the court. The guardian’s opinion, like other evidence, is subject to judicial scrutiny and carries no inherent additional weight. A court may reject an assessment founded on unreliable factual material without requiring the local authority to repair its evidential case.

On appeal, costs do not automatically follow the event, but an appellant must keep the merits under objective review after the first-instance decision.

Following the murder of the children’s mother by their father, the children lived successfully with foster carers in England. Their maternal uncle and aunt, who lived in Poland, sought to care for them under a special guardianship order.

At a welfare hearing, HHJ Serota QC preferred the relatives’ evidence to the local authority’s adverse assessment and made a special guardianship order. The local authority and the father appealed. The children’s guardian supported the appeals, while the relatives opposed them.

The appeals challenged the judge’s treatment of the social-work and guardian evidence, his application of the welfare checklist, and his reliance on principles concerning state intervention in family life. The court also had to address arrangements for securing legal recognition and a safe transfer of care in Poland.

1. Disposition. The court dismissed the substantive appeals. It affirmed the welfare decision that the children should be placed with their maternal relatives, but varied the order to maintain interim care orders and secure an urgent, properly supported transfer of care and legal recognition in Poland.
2. Fair process and the guardian’s role. A judge must remain an adjudicator while providing reasonable assistance to an unrepresented participant. Opposing advocates cannot be expected to promote that participant’s case, although they must not take unfair advantage. A children’s guardian appointed under the Family Procedure Rules is not neutral and is not an advocate to the court. The guardian must provide an independent view of the child’s interests, but the guardian’s advice is evidence subject to the same scrutiny as other evidence.
3. Assessment evidence. The trial judge was entitled, having seen the witnesses, to prefer the relatives’ credible evidence and reject the social worker’s disputed factual basis and resulting opinion. He was not obliged to order a further assessment to cure deficiencies in the local authority’s case. Nor was a separate explanation for rejecting the guardian’s outcome opinion fatal, because that opinion depended on the discredited social-work assessment.
4. Welfare. The court accepted the proportionality principles in Re B [2013] UKSC 33, Re B-S (Children) [2013] EWCA Civ 1148 and Re G (A child) [2013] EWCA Civ 965. Under section 1(3) of the Children’s Act 1989, the traumatic circumstances required great weight but did not displace the other welfare factors. Family ties were relevant, not decisive. The judge had balanced them against the children’s wishes, their successful foster placement, disruption, needs, education and social life.
5. Costs. The first-instance protection described in Re T Children [2012] UKSC 36 did not govern an appeal. Applying Re M (A Child) [2009] EWCA Civ 311, an appellant must reassess the merits once the first-instance reasons are known. The local authority had pursued a meritless appeal unreasonably and was ordered to pay the relatives’ appeal costs, save for the paralegal element.

1. Court of Appeal (Civil Division) — By [2014] EWCA Civ 405, the court dismissed the father’s and local authority’s substantive appeals, affirmed the special guardianship outcome, and varied the order to provide for interim care and implementation arrangements.
2. Watford County Court — HHJ Serota QC made a special guardianship order placing the children with their maternal uncle and aunt, rather than approving the local authority’s plan for long-term foster care.