In the matter of R (Children)

In care proceedings, the court must evaluate each available care option in sufficient detail to identify and weigh its own advantages and disadvantages, and then compare the options to determine the children’s welfare outcome. The evaluation must rest on a sound evidential foundation. Where significant evidence is new, incomplete, or has not been put to a person affected by the decision, the court should adjourn so that it can be addressed. An appellate court should set aside and remit a decision where these defects prevent a proper comparison of the options. The substance of the analysis matters more than its structure or form.

The guardian appealed against care orders made for two children aged 12 and 10. The orders would have required them to move from their current carer, R, to foster care. The local authority, guardian and mother had supported special guardianship and supervision orders enabling the children to remain with R. The father’s proposed alternatives had been rejected.

The judge determined the case despite incomplete evidence, concerns about the special guardianship report and limited analysis of long-term foster care. The guardian challenged the failure to balance the available options and the reliance on matters not addressed in oral evidence. The central issue was whether the applications had been determined on a sound evidential basis following a proper welfare comparison.

Appeal allowed. The care orders were set aside and the matter was sent back for rehearing. The Court of Appeal expressed no view as to the outcome of the rehearing.

1. The evidence at first instance was materially incomplete and unsatisfactory. Significant information had either emerged late or had not been addressed in oral evidence. The judge had also identified deficiencies in the special guardianship report and the guardian’s assessment. The case should therefore have been further adjourned to enable the parties and R to give further evidence and address those matters. The judgment did not rest on sound foundations.
2. The welfare evaluation was inadequate. In Re G (Care Proceedings: Welfare Evaluation) [2014] 1 FLR 670, the balancing exercise was described as requiring each option to be evaluated in sufficient detail to analyse and weigh its internal positives and negatives, followed by comparison of the options to determine the welfare outcome. The judge had focused unduly on R and had undertaken almost no assessment of the consequences of long-term foster care for these children.
3. The court also recognised the principle, stated in Re R [2015] 1 FLR 715, that the substance of judicial analysis, rather than its structure or form, must be considered. Here, the substantive analysis was insufficient because the available options had not been properly assessed or weighed.
4. The court made only a limited comment on the distinction between a care order and special guardianship order. At the rehearing, careful consideration would be required as to why the legal framework could make one form of order consistent with the children’s welfare while the other was not, when both were compared with foster care.

Lord Justice Holroyde agreed with the judgment of Lord Justice Moylan.

1. Court of Appeal (Civil Division): Allowed the guardian’s appeal, set aside the care orders and remitted the matter for rehearing.
2. Central London Family Court: Her Honour Judge Pearl made care orders on 29 May 2018, which would have resulted in the children moving to foster care.