H (A Child)

Where cumulative procedural and analytical errors fundamentally compromise a welfare determination, the resulting order is unsafe and must be set aside. A previous order set aside for inadequate analysis has no substantive effect upon the merits of the rehearing.

Once the statutory threshold for public law intervention is crossed, the court determines welfare by giving paramount consideration to the child’s lifelong welfare and applying a proportionate approach. There is no presumption in favour of the natural family at that stage.

A judge must maintain an open mind, ensure that experts receive an accurate account of relevant proceedings, and engage with material long-term risks. Unhelpful early interventions do not establish judicial bias unless they demonstrate a concluded view on the outcome.

A three-year-old child had lived with prospective adopters for 15 months when Russell J refused their adoption application and directed her reunification with her father and siblings. The judge’s decision followed an earlier appeal which had set aside the original care and placement orders because the district judge had failed to undertake an adequate welfare analysis.

The prospective adopters appealed. The local authority and children’s guardian supported the appeal. They contended that the rehearing had been compromised by the judge’s early interventions, her mistaken understanding of the earlier appeal, consequential changes in the professional evidence, and her failure to address a material long-term attachment risk.

The central issue was whether those defects, taken together, made the welfare determination unsafe and required a fresh hearing before a different judge.

1. Appeal allowed unanimously. McFarlane LJ, with whom Underhill LJ and Dame Janet Smith agreed, held that the hearing and parts of the welfare analysis were sufficiently flawed to make the outcome unsafe. Russell J’s order was set aside and the welfare issue was directed to be determined afresh by a different tribunal. The Court of Appeal expressed no view on whether reunification or adoption was the correct outcome.

2. The earlier Court of Appeal decision had done no more than set aside the district judge’s orders because he had failed to undertake an acceptable analysis. It had not decided that the placement order was wrong or determined what order should have been made. Russell J therefore erred by treating that decision as establishing that the child should never have been placed for adoption. That misunderstanding affected her conduct of the hearing, the experts’ understanding and her ultimate welfare evaluation.

3. The jointly instructed psychologist had not received a clear and accurate explanation of the earlier decision. He understood that the Court of Appeal had held the original placement substantively wrong, and this materially caused him to change his recommendation. The independent social worker and guardian then changed their positions in reliance upon that revised opinion. The resulting fault-line fundamentally compromised the reliability of the professional evidence and the welfare decision.

4. At the welfare stage there is no presumption in favour of a natural parent or family. The observations in Re L and Re KD concern the boundary which must be crossed before the state may intervene. Once the threshold under section 31 of the Children Act 1989 is crossed, paramount consideration must be given to welfare under section 1 of that Act and section 1 of the Adoption and Children Act 2002. The evaluation proceeds by proportionality and upon the individual facts.

5. The judge also failed to engage with the psychologist’s material concern that another separation might prevent the child from transferring her secure emotional attachment to her natural family, leaving her in a lasting emotional void. That omission was significant, although it would not alone have justified allowing the appeal.

6. The judge’s early interventions were unnecessary and unhelpful in a finely balanced case, but they did not establish judicial bias. They showed a concluded view about the legal effect of the earlier appeal, not a concluded view about the ultimate welfare outcome.

1. Court of Appeal (Civil Division): The prospective adopters’ appeal was allowed unanimously. Russell J’s order was set aside and the welfare issue was remitted for a fresh determination before a different judge.
2. High Court, Family Division: Russell J refused the adoption application, directed reunification with the father and siblings, and made the child a ward of court pending completion of the transition. Permission to appeal and a stay were refused.
3. Court of Appeal (earlier proceedings): In Re H (Children) [2015] EWCA Civ 583, the father’s earlier appeal was allowed. The care and placement orders were set aside because the district judge had not undertaken an adequate welfare analysis, and the welfare issue was remitted to Russell J.
4. Family Court: District Judge Gamba had made a care order and placement order concerning the child. HHJ Farquhar later refused an extension of time to appeal those orders but allowed an appeal concerning permission to oppose the adoption application.