Surrey County Council v S

A judge deciding whether children should remain with a parent or be removed for adoption must compare the realistic welfare options and evaluate whether the proposed interference with family life is proportionate. Adoption must be shown to be necessary.

The judge may depart from unanimous professional or expert advice if clear and coherent reasons are given. Expert evidence informs the decision, but its weight remains for the judge. An appellate court should be slow to interfere with first-instance welfare evaluations merely because particular factors could have received different weight.

Replacing an existing supervision order with a care order requires satisfaction of the statutory threshold, examination of the care plan and welfare options, and a fresh proportionality evaluation.

Surrey County Council brought care proceedings concerning three of a mother's children. Guildford County Court made no order concerning the eldest child and placed the two youngest children under 12-month supervision orders so that they could remain with their mother. The judge found the threshold under section 31 of the Children Act 1989 satisfied but rejected the authority's proposal for removal and adoption.

The authority appealed against the welfare analysis and proportionality evaluation. It argued that the judge had inadequately explained her departure from unanimous professional advice, understated the history and risks, failed to compare the available options properly, and misunderstood the mechanisms for replacing supervision orders with care orders. The central issue was whether the judge's reasons and evaluation were sufficient to justify the lesser intervention.

1. The appeal was dismissed unanimously. The judge had a sufficient analytical basis for making supervision orders. Her findings showed that remaining at home involved risk, but also supported the conclusion that immediate removal and adoption would be disproportionate. It had not been established that adoption was necessary.

2. The perfected judgment contained the judge's concluded reasoning. Her earlier preliminary indication did not. A judge may reflect upon and perfect the reasons, and may change the intended decision where justice requires: In the matter of L and B (Children) [2013] UKSC 8.

3. Replacing a supervision order with a care order is not automatic. The court must be satisfied that the threshold in section 31 of the Children Act 1989 is met. It must analyse the welfare options, consider the section 31A care plan and evaluate the proportionality of the proposed interference with the parties' article 8 rights. Sections 37 and 38 also provide mechanisms for interim protection where their conditions are satisfied.

4. The judge was entitled to disagree with the professional and expert witnesses. She did not have to deconstruct and reconstruct every witness's evidence. Clear and coherent reasons were sufficient. A welfare analysis is for the judge and does not itself require expert evidence. Experts advise, judges decide, and the weight of accepted expert evidence remains for the judge.

5. The welfare exercise required a comparative evaluation of the realistic placement options and their respective benefits and detriments. Although the judgment was not structured as a formal proportionality evaluation, its logical consequence was that the risk of remaining at home was justified because immediate removal for adoption was disproportionate. The Court of Appeal would be very hesitant to interfere merely because insufficient weight was said to have been given to a factor or witness.

6. Ryder LJ further observed that, where an authority proposes adoption, placement-order proceedings should ordinarily run concurrently with the care proceedings. The agency decision-maker's decision and supporting material enable a holistic, non-linear comparison of the options. Without that decision, an adoption care plan cannot be implemented and is likely to be inchoate or conditional. Its absence supplied an additional reason why approving adoption would have been disproportionate.

• Court of Appeal (Civil Division): The local authority's appeal was dismissed unanimously. The supervision orders were left undisturbed: [2014] EWCA Civ 601.
• Guildford County Court: Her Honour Judge Cushing found the section 31 threshold satisfied but made 12-month supervision orders for the two youngest children, allowing them to remain with their mother. No neutral citation is stated.