M (Children)

In care proceedings, an agreed threshold document will usually permit the court to proceed directly to welfare analysis. Further investigation is required where oral evidence departs from the concessions or the parties give materially different interpretations of them. A decision to make a care order must explain, with adequate findings, why return home with support is or is not in the child’s best interests. The court should address available support, the parenting regime, parental insight, prospects of repairing relationships, the alternatives, and the child’s wishes and feelings. A formulaic recital of the welfare checklist is unnecessary, but the checklist is an important safeguard. Where key findings are absent, an appellate court should remit for a fresh welfare evaluation based on current circumstances.

Adoptive parents appealed care orders made after two boys were removed from their home. The threshold findings accepted that the children had suffered significant harm and that the parents’ parenting had been re-traumatising. The parents challenged only the care order concerning JA and sought his return with local-authority support.

The first-instance judge refused that proposal but made no adequate findings about the support received, the household regime, parental insight, future support, or the effect of the absence of JA’s brother. The judge also failed to address JA’s wishes and feelings or the welfare checklist. The central issue was whether the Court of Appeal could make its own welfare decision or whether the matter required a retrial.

The appeal was allowed. The Court of Appeal did not decide that the care order was necessarily wrong. It remitted the matter for retrial, with updated evidence and assessment, and directed that JA should not return home immediately.

1. Threshold findings. An agreed threshold document will ordinarily allow the court to move directly to welfare analysis. Further exploration is required where oral evidence departs from generalised concessions or the parties place materially different interpretations on the findings, and the difference affects the welfare evaluation.
2. Welfare evaluation. The judge needed findings about the support given to the parents and its effect, the nature and extent of the parenting regime, the parents’ understanding of the harm caused, their willingness to change, the support available if JA returned, the comparative advantages and disadvantages of return and long-term fostering, the prospects of repairing the relationships, and the effect of JA living without JK.
3. Reasons and checklist. A judge need not adopt a formulaic approach to the welfare checklist, as recognised in H v H (Residence Order: Leave to remove from the jurisdiction) [1995] 1 FLR 529. However, the checklist is an invaluable aide-memoire, as stated in B v B (Residence Order: Reasons for Decision) [1997] 2 FLR 602. The first-instance judgment omitted JA’s wishes and feelings, failed to address the welfare principles, and gave only perfunctory consideration to Article 8 and the Human Rights Act.
4. Adoption support. Section 4(1)(a) of the Adoption and Children Act 2002 requires an assessment of an eligible person’s needs for adoption support services on request. Section 4(4) requires the local authority then to decide whether to provide services, but does not require provision merely because a need has been assessed.
5. Appellate disposal. In the absence of findings on the key issues, the Court of Appeal could not safely make its own welfare order from the papers and transcripts. The case therefore required a fresh welfare evaluation in light of circumstances at the time of retrial.

• Court of Appeal (Civil Division): Appeal from care orders made by His Honour Judge Yelton on 23 January 2015. The appeal concerning JA was allowed and the matter was remitted for retrial with updated evidence and assessment.