N-S (Children), Re

A judgment in public law children proceedings must identify the issues essential to the decision and explain how they were resolved. The reasons should enable the parties, professionals, children and an appellate court to understand the order.

Inadequate reasons do not automatically require an order to be set aside. An appellate court may uphold the decision where the only tenable outcome flows clearly from the findings and the omission caused no material irregularity. A judge is not ordinarily required to decide an alternative which no party actively advanced. If the judge proposes to determine an unraised issue, the parties should normally be invited to make submissions.

Care proceedings concerned seven children. The parents accepted alternative care for the eldest three but sought the return of the four youngest. The local authority and children’s guardian proposed care and placement orders with adoption as the plan. The Family Court rejected rehabilitation and made those orders, but gave no developed reasons for preferring adoption to long-term fostering or for limiting post-adoption contact.

The father appealed on the ground that the judgment lacked adequate reasons. He did not challenge the rejection of parental care and accepted that there was no realistic substantive challenge to the placement orders concerning the three youngest children. The central questions were the extent of the judge’s duty to give reasons and the appropriate appellate response where the substantive orders could not realistically be challenged.

1. Appeal dismissed unanimously. The Family Court’s judgment plainly lacked adequate reasoning about adoption. Its correct statement of the law was not matched by an application of the legal requirements and welfare considerations to each child. A bare statement that welfare required adoption did not explain the judicial analysis.

2. A judgment concerning children must explain the analysis supporting the orders made. Adequate reasons matter to the parties, those implementing the decision, the child and carers in later years, and any appellate court. In accordance with English v Emery Reimbold & Stirick Ltd [2002] EWCA Civ 605, the judgment must identify the issues vital to the conclusion and explain how they were resolved.

3. The deficiency did not require the placement orders to be set aside. Rehabilitation had properly been ruled out. For the three youngest children, adoption was then the only tenable plan capable of meeting their welfare needs. The justification for adoption therefore flowed clearly from the findings, although express reasons remained preferable and might ordinarily be required. In the narrow circumstances, there was no overall error in the determination.

4. Long-term fostering for the eldest of the four children had arisen only as a fallback if adoption proved unavailable. It was not advanced as a substantive alternative. Direct post-adoption contact likewise was not clearly presented as an issue requiring determination. Their omission from the judgment was understandable and caused no material irregularity. A judge contemplating determination of an issue not raised by the parties should normally identify it and invite submissions.

5. As practical guidance, advocates should identify every live issue at the start of the hearing and review that agenda at its conclusion. A judge should cross-check the conclusions against both the issues list and the relevant legal directions. This helps ensure that each matter requiring determination is addressed proportionately and clearly.

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 1121, unanimously dismissed the father’s appeal. Despite inadequate reasoning about adoption, the orders followed clearly from the findings and no material irregularity was established.
2. Family Court sitting at Watford: His Honour Judge Wilding rejected rehabilitation of the four youngest children and made care orders and placement for adoption orders for each of them.