P (A Child) (Rev 1)

In care proceedings, case management must not become a premature welfare determination. A judge must keep potentially viable family placements, including placements with relatives abroad, open for ordinary assessment and full consideration. Firm observations that close off such an option can create a fundamental error, especially where they lead parties and the local authority to omit assessment and the child to move towards adoption. The local authority must actively investigate a family placement identified as potentially viable. It cannot rely on a parent’s engagement where the parent is unreliable or in denial. Where that error materially affects the welfare process, appellate delay does not justify affirming the orders. The appropriate response may be to set aside the care and placement orders and direct a fresh welfare hearing before a different judge.

The parents appealed from orders made by HHJ Dodds in the Liverpool County Court on 17 December 2013, placing their daughter in the local authority’s care and authorising placement for adoption. The factual findings that the child had suffered a non-accidental injury inflicted by her father, and that she could not safely return to the parents, were not challenged. The appeal concerned whether the judge had prematurely ruled out care by grandparents living in Poland and whether the local authority had failed to investigate that option, despite the maternal grandmother having indicated a wish to be assessed. The central issue was whether the welfare and placement process had been conducted fairly and lawfully before adoption was pursued.

1. Disposition. Permission to appeal was granted and the appeal was allowed. The care order and placement for adoption order were set aside and replaced by a fresh interim care order.
2. Premature case management. On the transcript, HHJ Dodds had expressed a concluded view against considering placement in Poland at a very early stage. A judge must distinguish robust case management from prematurely closing off a potentially viable welfare option. The failure to give the grandparents’ placement option normal assessment and full consideration was a fundamental error. Lord Justice McCombe agreed that the judge had closed his mind to a solution in Poland and had crossed the line between case management and premature conclusions.
3. Local authority responsibility. The grandparents had identified themselves as potential carers. The local authority failed to meet them as directed, used correspondence that was unlikely to produce an effective response, and relied improperly on the parents’ lack of further engagement, despite alleging that the parents were unreliable and dishonest. It therefore fell well short of what was required in planning for the child’s future.
4. Convention reasoning. Lady Justice Arden additionally stated that the local authority and the court were subject to a positive obligation under Article 8 to consider ways of retaining a child within the family. Referring to TP and KM v the United Kingdom (Application No. 28945/95), she emphasised the need for stricter scrutiny of further limitations on family life and the need to make any provisional view unmistakably provisional.
5. Further directions. The established findings of fact were left undisturbed. The welfare stage was to be reheard before a different circuit judge and at a different court centre, with prompt assessment of the grandparents and other family-placement options.

• Court of Appeal (Civil Division). On 30 April 2014, permission was granted, the appeal was allowed, and the care and placement for adoption orders were set aside. The welfare stage was directed to be reheard before a different judge.
• County Court sitting at Liverpool. HHJ Dodds made a care order and a placement for adoption order on 17 December 2013.