L (Children) (Rev 1)

In care proceedings, an appellate court may uphold care orders despite shortcomings in the structure or welfare-checklist analysis of the lower court’s judgment where unchallenged findings establish continuing significant harm and show that every realistic alternative leaving the children in parental primary care would expose them to that harm. A supervision order with limited respite is inadequate where it leaves the harmful care arrangements substantially unchanged. The welfare checklist must be used as a genuine evaluative aid before the decision, rather than as a post hoc confirmation. An imperfect checklist analysis does not require appellate intervention where the findings make the outcome unavoidable.

The appeal arose from final care orders made by HHJ Melville QC in the Plymouth Combined Court on 23 January 2017 concerning two children who had remained in their mother’s care with extensive support. The threshold under section 31 of the Children Act 1989 had been conceded. The appellant challenged the judge’s evaluation of the children’s guardian’s recommendation, his treatment of the section 1(3) welfare checklist, and the necessity and proportionality of removing the children to foster care. Proposed arguments under the Equality Act 2010 were abandoned. The central issue was whether a further supervision order, including regular respite foster care, could protect the children from the significant harm identified by the judge.

The court granted permission to appeal but dismissed the appeal.

1. The judge’s judgment was open to criticism. His treatment of the section 1(3) welfare checklist in the Children Act 1989 was cursory and, concerning the children’s wishes and feelings, was not based on firm evidence. The structure of the judgment suggested that the conclusion had been reached before the checklist exercise. The judge also failed to analyse the care plan proposed by the independent psychologist.
2. Those deficiencies did not make the orders unsafe. The judge had made three central findings, none of which was challenged: continuing deficiencies in basic physical care, continuing exposure to sexual risk, and a lack of sufficient emotional attunement. These findings established that the children remained exposed to significant harm in their mother’s home.
3. Any variant of the existing arrangements that left the children in their mother’s primary care, even with respite foster care for two nights in every fourteen, would continue to expose them to the harmful parenting identified by the judge. It therefore could not meet their welfare needs or protect them from future harm.
4. On the findings made, there could have been only one outcome: care orders in respect of both children. The appeal was accordingly dismissed.

• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was dismissed on 27 July 2017: [2017] EWCA Civ 1137.
• Plymouth Combined Court: HHJ Melville QC made final care orders for both children on 23 January 2017.