R (A Child)

In care proceedings, the court must identify the risk said to justify intervention and determine whether it remains a real risk to the children. Disputed allegations must not be treated as proved where no finding has been made. Parental protective capacity must be assessed in its factual context. Before making care or placement orders, the court must consider whether protection can be achieved at home, including through supervision or a care order. It must undertake a global, holistic comparison of every realistic option, including the consequences of removal, adoption and sibling separation. Failure to reason through those matters undermines the welfare decision.

On 29 August 2013, HHJ Penna in the Manchester County Court made care orders concerning four children and placement orders concerning the two youngest. The children’s mother appealed with permission limited to the adequacy of the reasoning. The permission judgment raised whether the identified sexual risk remained after the mother’s separation and divorce from Mr J, and whether less draconian outcomes had been considered. The Court of Appeal examined the findings on risk, the mother’s protective capacity and the necessity of care and placement orders compared with alternative arrangements.

Lady Justice Black gave the judgment, with Lord Justice Kitchin and Lord Justice Longmore agreeing. The appeal was allowed and the case was sent for rehearing before a different judge.

1. Risk analysis. The judge was entitled to consider the existence of serious allegations and the mother’s response to them, but could not proceed on the basis that the disputed sexual abuse had occurred when no such finding had been made. The relevant risk arose principally from Mr J’s conviction. The court had to determine whether he remained, or was likely to become, part of the mother’s or children’s lives. Without such a finding, the risk and the mother’s ability to protect against it might be academic.
2. Protective capacity. The assessment of the mother’s protective capacity had to take account of the local authority’s own earlier decision to permit Mr J to live in the family home despite knowing of his conviction. It also required careful evaluation of the facts available to the mother concerning the later allegations and of her response to them. The failure to analyse these matters sufficiently fatally undermined the welfare decision. The court also applied the requirement for fully reasoned decision-making emphasised in Re B-S (Children) [2013] EWCA Civ 1146.
3. Alternatives. The precise nature, likelihood and consequences of the risk determined what arrangements were required. In every case, the court should consider whether the children could be protected at home, including through a supervision order or care order. This reflected the last-resort principle in Re B (A child) [2013] UKSC 33.
4. Global welfare evaluation. Following Re G [2013] EWCA Civ 965, each realistic option had to be evaluated in sufficient detail, including its internal advantages and disadvantages, and compared with the competing options. The analysis had to include returning home, removal, sibling separation, fostering and adoption. Merely comparing adoption with fostering and different sibling placements was insufficient. A directions hearing and rehearing were ordered with expedition, and the court expressed no view on the outcome.

• Court of Appeal (Civil Division): appeal allowed; rehearing ordered before a different judge, [2014] EWCA Civ 597.
• Manchester County Court: HHJ Penna made care orders for four children and placement orders for the two youngest on 29 August 2013 in case MH12C00568. Permission to appeal was granted by Lewison LJ on the ground that the judgment was inadequately reasoned.