W (A Child) (Rev 2)

In a placement-order appeal, a judge need not recite every item in the statutory welfare checklists. The judgment must identify and analyse the important, critical or decisive factors, especially where the case is difficult or finely balanced. The assessment must address the lifelong effect of severing family ties, existing relationships, the benefits of family placement and the proposed carer’s positive attributes. Risk must be evaluated by reference to its nature, likelihood and consequences, with a clear explanation linking the facts to the alleged risk of harm. Lies or lack of insight must be assessed in their welfare context and must not hijack the case. Where these requirements are not met and proportionality cannot be assessed, the placement and care orders should be set aside and the matter reheard.

J, a young child, had lived in foster care since shortly after birth. His mother accepted that she could not care for him. His great-aunt was assessed as a possible long-term family carer. An initial assessment was negative, but a later addendum identified substantial improvement and the local authority temporarily supported a plan for placement with the great-aunt under a special guardianship order. The local authority subsequently changed position and sought care and placement orders.

HHJ Bush made care and placement orders after a four-day hearing on 3 May 2019. The great-aunt appealed, alleging inadequate reasons, failure properly to analyse the welfare checklists and positive factors, and inadequate evaluation of risk and the proportionality of adoption. The central issue was whether the judge’s short judgment clearly identified the relevant factors and explained the reasoning supporting the placement order.

Appeal allowed. Per Lady Justice King, with Henderson LJ and Moylan LJ agreeing, the care and placement orders were set aside. The local authority’s application was remitted for rehearing, and J was to remain in local-authority care under Children Act 1989, s 20, pending rehearing.

1. The court applied the established approach to reasons in welfare and fact-finding cases. A judge need not slavishly rehearse every welfare-checklist factor, but must identify and analyse the important, critical or decisive factors and explain the reasoning leading to the outcome. This was consistent with Re M (A Child: Care Proceedings) [2018] EWCA Civ 240, Re G (Children) [2006] 2 FLR 629 HL and Re V (A Child)(Inadequate Reasons for Findings of Fact) [2015] EWCA Civ 274.
2. The judgment failed adequately to address the checklist factors in s 1(4)(c) and (f) of the Adoption and Children Act 2002. It did not properly analyse the lifelong effect of adoption, J’s relationships with his great-aunt and mother, or the potential benefit of living under the same roof as his mother. The court applied the guidance in YC v United Kingdom 55 EHRR 967 that family ties may be severed only in very exceptional circumstances and that a more beneficial upbringing environment is insufficient by itself.
3. The judge concentrated on concerns and failed to place the great-aunt’s strengths, improvements, attachment with J and family relationships on the other side of the balancing exercise. Without a clear analysis of both risks and benefits, the court could not assess whether adoption was proportionate.
4. Risk required an intense focus on its type, likelihood and consequences, together with an explanation of how the facts established a risk of harm. The court applied Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, Re Y (A Child) [2013] EWCA Civ 1337 and Re A (A Child) [2015] EWFC 11. The judge did not sufficiently link the great-aunt’s omissions or alleged lack of insight to emotional or actual harm.
5. The local authority also had to present an even-handed case. Relevant contact observations, including detailed records from the principal supervisor, should have been placed before the judge and the independent social worker.

1. Court of Appeal (Civil Division): Appeal allowed. The care and placement orders were set aside and the local authority’s application was remitted for rehearing.
2. Birmingham Civil Justice Centre: HHJ Bush made care and placement orders concerning J on 3 May 2019.