W-P (Children)

A temporary break in a significant caregiving relationship does not prevent a court from making threshold findings about significant harm. Appellate intervention in factual findings is limited to cases where the findings lack evidential foundation or are irrational. When choosing between a special guardianship order and a child arrangements order, the court must assess the particular facts, apply the welfare checklist, compare the effect of the orders on parental responsibility and stability, and select the least intrusive effective option. The court must give clear reasons. A thin comparative analysis may make a judgment vulnerable, but will not necessarily invalidate the order where the evidence addressed the relevant advantages and disadvantages and the judgment, read as a whole, explains the outcome.

The mother appealed against orders made by HHJ Robinson in the Family Court at Medway on 5 October 2018 in care proceedings concerning her two sons. The judge made findings against the parents, rejected allegations of harmful conduct by the paternal grandparents, and placed the boys with the grandparents under a special guardianship order, supported by a supervision order.

The mother challenged the threshold findings made against her, argued that a child arrangements order would have been more proportionate than a special guardianship order, and criticised the judge’s reasoning and procedure. She did not appeal the decision that the boys should live with the grandparents or the supervision order. The central issues were whether the factual and threshold findings could stand and whether the form of order was justified.

1. Appeal dismissed. The decision that the boys should live with their paternal grandparents was not challenged and was plainly open to the judge. It accorded with the professional evidence and followed consideration of the welfare checklist.
2. A brief temporary interruption in a significant caregiving relationship did not prevent the court from making findings under section 31 of the Children Act 1989. The mother’s challenge was in substance to the factual findings. An appellate court should be slow to disturb findings based on oral evidence and should intervene only where they have no foundation in the evidence or are irrational. That hurdle was particularly high because the findings did not directly affect the unchallenged placement and supervision orders.
3. The judge was not required to adjourn between fact-finding and the welfare decision. Professionals in this field can make recommendations on alternative factual bases. A short adjournment may sometimes assist, but it is not generally necessary.
4. The final order did not comply with the guidance in Re S & H-S (Children) [2018] EWCA Civ 1282. Threshold findings should be recorded clearly, including whether significant harm is suffered or likely, its category, and basic causation. The order should contain or annex a clear statement of the basis on which the threshold is established. The deficient recording created uncertainty, but did not require the appeal to succeed.
5. Special guardianship is a significant order. Under the guidance in Re S (A Child) [2007] EWCA Civ 54, the court must decide on the particular facts which order best serves the child’s welfare, give full reasons, apply the welfare checklist, and consider proportionality and the least intrusive effective option. The judge’s comparative analysis was thin, but the professional evidence had addressed the advantages and disadvantages of the available orders, the judge had accepted that evidence, and the judgment read as a whole sufficiently explained why the stability of the long-term placement justified a special guardianship order.

1. Court of Appeal (Civil Division): On 3 July 2019, dismissed the mother’s appeal in [2019] EWCA Civ 1120. The challenge to the factual and threshold findings, the choice of special guardianship order, and the alleged procedural deficiencies failed.
2. Family Court at Medway: HHJ Robinson made findings in care proceedings and, on 5 October 2018, made a special guardianship order placing the boys with their paternal grandparents, together with a supervision order.