A (Child)

A decision reversing a finely balanced rehabilitation plan must be based on well-established facts understood in their proper context and must explain why the change is justified. The court must consider whether failures in implementing the earlier plan materially contributed to the difficulties relied upon. Where adoption is the real care plan, the court must address its implications even if no placement application has yet been made. It must assess the genuine care options through the welfare checklist in section 1(4) of the Adoption and Children Act 2002.

The mother appealed against a care order removing her two-and-a-half-year-old daughter from her care. Earlier care and placement orders had been set aside on appeal, and on rehearing the Recorder had directed a phased rehabilitation of the child to the mother. The child eventually came into the mother’s full-time care, but four subsequent incidents led the Recorder to reverse course and make a care order, with the child removed and placed in foster care.

The appeal concerned whether the Recorder had adequately evaluated those incidents in the context of the failed rehabilitation plan, and whether he had properly addressed the fact that the local authority’s real plan was adoption, despite the absence of a placement application.

The Court of Appeal allowed the appeal and remitted the case for rehearing by a High Court judge. It expressed no view on the merits of the competing care options.

1. Context and explanation. The Recorder had to determine why the rehabilitation programme had not proceeded as directed and evaluate whether any failures by the local authority had materially contributed to the mother’s difficulties. The four post-November incidents also had to be assessed against the earlier findings, the support that had been contemplated, the actual progress of the rehabilitation and the evidence concerning the mother’s care of the child. The Recorder’s treatment of these matters was too cursory. He did not sufficiently explain why difficulties recognised in the earlier judgment had become sufficient, within a few months, to justify removal with a view to adoption (paras [26], [30]–[31]).
2. The real care plan. The local authority’s documentation was defective and confused. Although the written plan referred to foster care and parallel planning, adoption had already been identified as the appropriate course. The Recorder therefore went off track by treating long-term fostering and continuing contact as the principal options without addressing the implications of adoption. His reasoning also contemplated a future return to the mother, which did not fit the adoption plan (paras [32]–[36]).
3. Welfare analysis. Following the approach explained in Re R (a child) [2014] EWCA Civ 1625, the court had to analyse the real choice between return to the mother and adoption by giving the child’s welfare throughout her life paramount consideration through the welfare checklist in section 1(4) of the Adoption and Children Act 2002. That exercise was required even though no placement application had yet been made. The Recorder had failed to undertake it (para [37]).

• Court of Appeal (Civil Division): The mother’s appeal was allowed on 24 August 2016. The care order was set aside and the case was remitted for rehearing by a High Court judge.
• Family Court at East London: Mr Recorder Bedingfield made a care order on 31 March 2016 after the child had been rehabilitated to the mother’s full-time care. The child was removed and placed in foster care.