M (A Child)

In proceedings concerning a placement order, the court must identify and analyse every important, critical or decisive welfare factor, particularly where the case is difficult or finely balanced. A serious finding of future harm requires a cohesive evidential analysis.

Proportionality requires the court to cross-check that the seriousness of permanent separation is a justifiable response to the seriousness of the established problem. Where a child may be difficult to place, the court also needs the best available evidence about the likelihood and likely timescale of finding suitable adopters.

The mother appealed against orders of the Family Court dismissing her application to discharge a care order and authorising the placement of her five-year-old daughter for adoption. The original concerns arose from the mother's unnecessary administration of an epi-pen. Subsequent concerns included overprotectiveness, alleged emotional misattunement and conduct that caused a foster placement to end.

The appeal concerned whether the judge had adequately identified the risk of future physical and emotional harm, applied the statutory welfare factors, and explained why permanent separation was proportionate. The evidence also gave an incomplete picture of the child's developmental, cultural, physical and attachment needs, and of the prospects and likely timescale of finding suitable adopters.

1. Appeal allowed and matter remitted for rehearing. Lady Justice King, with whom Lord Justice Peter Jackson and Lord Justice M C Combe agreed, held that the judge had not sufficiently analysed two critical welfare matters: the alleged risk of harm and the child's relevant characteristics.
2. The finding that the mother presented a significant risk of future physical harm went substantially beyond the agreed threshold and rested on very limited evidence. The two unnecessary uses of an epi-pen and the mother's later conduct concerning marks on the child did not, without a cohesive and current expert analysis, adequately support that serious conclusion. Legitimate concerns about emotional harm likewise lacked an expert assessment of the attachment between mother and child that accounted for the mother's anxiety, the child's developmental difficulties, changes of carer and their prolonged separation.
3. The court need not rehearse every statutory welfare factor. It must, however, identify and analyse every important, critical or decisive factor sufficiently to show its place in the overall decision-making process. That duty is especially important in a difficult or finely balanced case: Re G (Children) [2006] 2 FLR 629 HL applied.
4. The judge had not assembled an adequate account of the child's age, ethnicity, allergies, speech and developmental delay, behavioural issues and possible attachment difficulties. Those characteristics were material both to welfare and to the feasibility of adoption. In a potentially difficult placement case, the court needs the best available evidence about the likelihood of identifying suitable adopters and the appropriate duration of the search. Direct evidence from a family-finding social worker may sometimes be required.
5. Proportionality is a cross-check that the seriousness of the contemplated order is a justifiable response to the seriousness of the established problem. The deficient analysis of harm, limited information about the child and sparse evidence about adoptive placement prevented a proper comparison of the benefits of family life against the risks of rehabilitation. The judgment therefore did not adequately justify permanent separation.
6. The court gave no indication of the result at the rehearing. It also made no order for appeal costs. There is no presumption that costs follow success in family proceedings, and the local authority had not acted unreasonably by defending an order supported by the professional evidence and the children's guardian.

1. Court of Appeal (Civil Division): Allowed the mother's appeal, set aside the relevant orders and remitted the matter for an urgent rehearing. No order was made for the costs of the appeal.
2. Family Court in Southampton: His Honour Judge Hess dismissed the mother's application to discharge the existing care order and made a placement order on 16 June 2017.
3. Earlier care proceedings: His Honour Judge Miller QC made the care order on 31 March 2016 upon an agreed threshold under section 31 of the Children Act 1989.