Re DAM (Children)

A judgment in care proceedings has no prescribed structure. It must, in substance, show that the court determined the facts, threshold, welfare, necessity and proportionality. Confusing structure may create appeal risk, but does not itself invalidate an adequately reasoned decision.

The welfare checklist must be considered substantively. It is unnecessary to set out the analysis before announcing a conclusion if the judgment as a whole demonstrates that all significant welfare factors were evaluated. A care order requires facts justifying intervention, welfare benefit, necessity and proportionality. The test of nothing else will do applies only to non-consensual adoption, not to an ordinary care order.

The mother appealed orders made by HHJ Tolson in public-law proceedings concerning D, A and M. The judge made care orders for D and A, with plans for foster care and maternal contact. He made a child arrangements order for M to live with her father, together with a supervision order.

The mother discontinued her appeal concerning M, which was dismissed by consent. She maintained her appeal concerning D and A. She challenged the threshold findings, the welfare assessment, the proportionality of care orders, and the structure of the judgment. The central issue was whether the judgment, read as a whole, showed a lawful and proportionate comparative welfare decision.

1. The appeal was dismissed. The appeal concerning M was dismissed by consent. The care orders for D and A were upheld.

2. The judge’s extensive findings established significant harm and adequately supported the welfare outcome. They included neglect affecting health, education, emotional development and social life; insecure attachment; exposure to inappropriate adult material; and the mother’s entrenched refusal to engage with assessment or intervention. The evidence justified the conclusion that the children’s needs would not be met in her care and that care orders were necessary.

3. It was unwise to describe the case as turning on threshold alone. Threshold concerns harm, whereas welfare requires a wider evaluation. However, the judgment did not in substance rest on threshold alone. Read as a whole, it assessed the relevant welfare considerations and compared the genuine options of returning D and A home or placing them in foster care.

4. The welfare checklist in the Children Act 1989 had to be considered in substance. There was no requirement to articulate the checklist analysis before stating a conclusion. Nevertheless, postponing it created a real risk that the reasoning would appear defective. The absence of a single, methodical comparative evaluation was a weakness, but the judgment demonstrated that the significant factors, including the court’s available powers, had been considered.

5. A care order must be justified by the facts, serve the child’s interests, and be necessary and proportionate. The phrase nothing else will do was not an additional test for these care orders. As explained by Re B-S [2013] EWCA Civ 1146 and originating in In re M [2013] UKSC 33, it concerns non-consensual adoption and the severance of the parental relationship.

6. The failure expressly to revisit proportionality did not undermine this decision, as proportionality had been correctly self-directed and was apparent from the reasoning. Nor did the form of the judgment amount to a serious procedural irregularity. It adequately explained the decision, although a simpler and more methodical judgment would likely have avoided the appeal.

• Court of Appeal (Civil Division) In Re DAM (Children) [2018] EWCA Civ 386, the court dismissed the mother’s appeal against the care orders for D and A. Her appeal concerning M was dismissed by consent.
• Central Family Court On 3 November 2017, HHJ Tolson made care orders for D and A, with plans for foster care. He made a child arrangements order for M to live with her father, together with a supervision order.