J (A Child)

Before making a care order leading to adoption, the court must determine on properly proved facts whether the statutory threshold of significant harm is crossed. The local authority must explain the link between each material fact and the asserted harm.

Adoption is a last resort. It may be ordered only where, after a comprehensive welfare and proportionality evaluation, nothing else will meet the child’s needs. Parental imperfection or judicial disapproval of parental conduct is insufficient. The judge must consider all the evidence, the statutory welfare checklists, the child’s lifelong welfare and the support capable of preserving family life.

The mother appealed, with the father’s support, against care and placement orders made by HHJ Barber concerning their infant child. The local authority relied principally on parental immaturity, inconsistent engagement with professionals, alleged domestic abuse and the father’s cannabis use. It proposed adoption.

The first-instance judgment largely reproduced written assessment material. It contained no evaluation of the evidence given during the three-day hearing, made few reasoned factual findings and did not explain how the facts established significant harm. It also lacked a structured welfare and proportionality assessment.

The central issues were whether the judge had properly determined the threshold under section 31 of the Children Act 1989 and whether adoption had been demonstrated to be the necessary and proportionate welfare outcome.

1. Appeal allowed. The judicial analysis was, by a wide margin, wholly inadequate. The care and placement orders were set aside, and the proceedings were directed to be reheard promptly and in full by a different judge.

2. Where the local authority’s factual case is contested, it must prove the material facts on the balance of probabilities by proper evidence. The judge must evaluate all the evidence, including contested oral evidence, and give sufficiently reasoned findings. The omission of any evaluation of a three-day oral hearing could not be repaired by requesting supplemental reasons.

3. The court must determine actively whether the threshold in section 31 of the Children Act 1989 is crossed. The findings must explain how the proved facts, individually or cumulatively, establish that the child has suffered or is likely to suffer significant harm. They must identify, at least broadly, the category of harm. Generalised concerns about immaturity, honesty, engagement, domestic incidents or substance use do not establish the required linkage without analysis.

4. If the threshold is crossed, the court must conduct a separate, thorough welfare and proportionality evaluation. Adoption is the last resort and is permissible only where nothing else will do. The state does not remove children merely because parents are imperfect or because aspects of their conduct attract disapproval. The court must guard against social engineering.

5. The judge must consider the welfare checklists in sections 1(3) of the Children Act 1989 and 1(4) of the Adoption and Children Act 2002, treat the child’s welfare throughout life as paramount under section 1(2) of the 2002 Act, and apply section 52(1)(b) when dispensing with parental consent. Although an experienced family judge need not invariably cite each provision expressly, the reasoning must demonstrate the required balancing exercise.

6. Proportionality under article 8 of the European Convention on Human Rights requires consideration of the support which the state can provide to maintain the child with the parents. The omission was particularly serious because the mother was herself a child for whom the local authority had responsibility and continued to owe statutory support duties.

1. Court of Appeal (Civil Division): By [2015] EWCA Civ 222, unanimously allowed the mother’s appeal, set aside the care and placement orders, and directed a prompt full rehearing before a different judge.
2. Family Court at Sheffield: HHJ Barber made a care order and an order authorising the local authority to place the child for adoption on 8 August 2014.