L (Children) (Rev 1)

The Court of Appeal dismissed an appeal against final care orders removing two children from their mother's care. The threshold in the Children Act 1989, s.31 was conceded and the judge made three central findings on the balance of probability: continued lack of basic physical care, an ongoing sexual risk from contact with named individuals, and a lack of emotional attunement by the mother. Although the appellate court criticised aspects of the judge's reasoning (notably a cursory use of the s.1(3) welfare checklist and an incomplete engagement with the expert's proposed care plan), it held that, given the unchallenged findings of significant harm, no realistic supervision regime that left the mother as the predominant carer would protect the children; accordingly the care orders were justified. The Equality Act 2010 points raised below were not pursued on appeal.

Background and parties:

• The proceedings concerned two children, R (age 11) and A (age 7), whose parents both have very significant learning disabilities; the mother lives with her own mother who provided much practical support. A younger sibling had previously been placed for adoption. The local authority had previously made supervision orders and provided substantial support (including an independent support agency, SAY), but continued concerns about neglect and failure to thrive led to care proceedings in February 2016.

Procedural posture:

• On 23 January 2017 HHJ Melville QC made final care orders placing the children in long-term foster care; the orders were stayed pending this appeal. Permission to appeal was considered by the full court and the appeal was heard before the Court of Appeal.

Issues:

• Whether the judge failed properly to evaluate the childrens guardians recommendation and the experts care plan; whether the judge conducted a sufficient s.1(3) welfare checklist analysis (including consideration of the childrens wishes and feelings); whether removal from the mothers care was necessary and proportionate; and (initially) whether duties under the Equality Act 2010 required different measures (Equality Act grounds were later abandoned).

Courts reasoning and conclusions:

• The judges extensive fact-finding was summarised: he accepted the expert psychologists concerns about emotional needs but did not adopt the guardians preference for continued primary residence with the mother and fortnightly respite; the expert had proposed weekly foster care with weekend return. The Court of Appeal accepted criticisms of the judges presentation of the s.1(3) checklist and his failure to analyse fully the experts proposed care plan, and noted some shortcomings in the treatment of the childrens wishes and feelings in the judgment. However, the court held that the judges three central unchallenged findings of continuing significant harm meant that any regime leaving the mother as the predominant carer (including the proposed supervision order with limited respite) would fail to protect the children; removal was therefore necessary and proportionate. The appeal was dismissed.

Subsidiary findings:

• The judge concluded there had been no breach of Article 6 or 8 of the European Convention on Human Rights in making the orders.

Appeal dismissed. Although the Court of Appeal identified defects in the judge's written reasoning (notably a cursory welfare checklist and limited engagement with the expert's detailed care plan), the judges unchallenged findings that the children were at risk of significant harm in three distinct respects meant no workable supervision regime leaving the mother as the principal carer would protect them; accordingly the care orders were the only practicable outcome.

Appeal from HHJ Melville QC sitting at Plymouth Combined Court (final care orders made 23 January 2017). Permission to appeal was heard before the full Court of Appeal; appeal determined by the Court of Appeal (judgment reported [2017] EWCA Civ 1137).