B (A Child), Re

In public-law family proceedings, a first appeal is ordinarily a review, not a rehearing. The appellate court must identify an error sufficient to justify interference and decide whether the order is wrong. It may remake the welfare and proportionality decision where the error is discrete and can be corrected fairly on the available evidence. Where a key issue was not decided, relevant evidence is missing, or witness credibility is central, the proper course is ordinarily to allow the appeal and remit for rehearing.

Care and placement decisions require a holistic comparison of realistic welfare options. Adoption requires separate consideration of its lifelong consequences and family relationships under the Adoption and Children Act 2002. Dispensing with parental consent requires the stringent conclusion that the child’s welfare requires it. Article 8 proportionality must be justified.

Parents involved in care proceedings conceded that the threshold under the Children Act 1989 was satisfied. After a rehabilitation plan was changed to adoption, the South Staffordshire Family Proceedings Court made care and placement orders. The father appealed to Birmingham County Court, where Her Honour Judge Clarke accepted that the magistrates had adopted a linear approach, failed to analyse the realistic welfare options and failed to conduct a proportionality evaluation, but dismissed the appeal after undertaking her own analysis.

The father brought a second appeal. The central issue was whether the appeal judge could properly uphold the orders by filling the gaps in the first court’s reasoning, or whether the evidential and procedural deficiencies required the applications to be reheard.

1. Disposition. The appeal was allowed. The care and placement orders were set aside, and the applications were remitted to the County Court for a full rehearing before a different judge.
2. Welfare and proportionality. A care order requires a comparative analysis of the realistic long-term welfare options, including the benefits and detriments of each option. The analysis must apply the welfare checklist in section 1(3) of the Children Act 1989. Where adoption is proposed, the court must also consider the separate factors in section 1(4) of the Adoption and Children Act 2002, including the lifelong effect of adoption and the child’s relationships with relatives. The court must then determine necessity and proportionality under article 8. A placement order cannot be made without addressing the stringent test in section 52(1)(b) of the 2002 Act: the child’s welfare must require dispensing with parental consent.
3. Appellate function. The ordinary task on a family appeal is review. The appellate court must identify an error of fact, value judgment or law sufficient to justify interference and determine whether the order is wrong. After doing so, it has a discretionary choice between remaking the decision and remitting the matter. It may fill a discrete gap or add reasons where the decision can be remade fairly on the evidence available or properly admitted. A rehearing is generally required where a key question was not answered, material evidence is missing, or the credibility and reliability of witnesses are in issue. A full rehearing is a separate process, undertaken only after the appeal is allowed and the original orders are set aside.
4. Application. The magistrates had undertaken no sufficient welfare analysis or proportionality evaluation. The social-work and permanence evidence did not explain why adoption was necessary or compare the realistic options. The guardian’s analysis was insufficient, and the appeal judge had heard no additional evidence or witnesses. The evidential deficiencies therefore could not be cured by supplying additional reasoning. Although the appeal court must consider substance rather than form, there was no substantive analysis to preserve in this case.

1. Court of Appeal (Civil Division): appeal allowed; care and placement orders set aside and applications remitted for rehearing before a different County Court judge, [2014] EWCA Civ 565.
2. Birmingham County Court: Her Honour Judge Clarke dismissed the father’s appeal from the care and placement orders after accepting that the magistrates’ reasoning was deficient.
3. South Staffordshire Family Proceedings Court: care and placement orders made on 13 June 2013.