B (Children)

An appellate court should not interfere with a trial judge’s welfare determination merely because it might attach different weight to the evidence or relevant factors. The evaluative and balancing exercise belongs to the trial judge. A discursive judgment must be read as a whole. Reasons are sufficient where the findings, conclusions and reasoning process are clear and the judge has addressed the right questions. In a finely balanced care case, the court must compare the welfare risks and benefits of each realistic option, including the harm caused by removal. A sufficient prospect that a parent will make necessary changes with support may justify leaving children in that parent’s care. The appeal was dismissed.

The London Borough of Hackney appealed from the Central Family Court’s decision to make supervision orders in respect of two children. The local authority had sought care orders, proposing long-term foster care for the elder child and adoption for the younger child. The trial judge concluded that the mother had the capacity to change, that support and therapy could assist her, and that remaining in her care presented the lesser welfare risk.

The appeal challenged the welfare evaluation, the treatment of expert evidence, the assessment of the mother’s capacity to make consistent changes, the relevant therapeutic timescales and the separate analysis of the younger child. The central issues were whether the judge’s welfare determination was open to him on the evidence and whether his reasons were adequate.

1. Appeal dismissed. The trial judge’s decision to make supervision orders was upheld.
2. The evaluation and balancing of welfare factors are matters for the trial judge: Baroness Hale’s formulation in In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 was applied. The Court of Appeal could not interfere merely because the local authority considered that different weight should have been given to the evidence or to particular risks.
3. The judge was entitled to find that the mother had the capacity to change and that there was a sufficient prospect, with support, that she would make the necessary changes. His conclusion was not that she would certainly be consistent. He recognised that progress would take time, could be interrupted and required sustained engagement with therapy and social work support.
4. The welfare analysis required comparison of the potential risks of the children remaining with the mother and the risks and benefits of removal. The judge considered the risk that the children’s emotional needs might remain unmet, but also the likely distress, regression and possible placement instability following removal, particularly for the elder child. He considered the children separately and took account of their strong sibling relationship.
5. The reasons challenge failed. The test stated in Re B (Appeal; Lack of Reasons) [2003] 2 FLR 1035 and Re DAM (Children: Care Proceedings) [2018] 2 FLR 676 was satisfied. The judgment had to be read as a whole because its reasoning was somewhat discursive and conclusions were distributed throughout it. It sufficiently explained the findings, conclusions and reasoning process, and showed that the judge had asked and answered the relevant welfare questions.
6. The judge had considered the expert and social work evidence. He was entitled to accept the Guardian’s welfare analysis and to conclude that insufficient weight had been given by other witnesses to the likely harm of removal. He had not misunderstood the therapeutic timescales. The appeal therefore disclosed no error of law or deficient reasoning.

• Court of Appeal (Civil Division): The appeal against the supervision orders was dismissed.
• Central Family Court: His Honour Judge Oliver made supervision orders in respect of both children on 1 July 2019, rejecting the proposed care plans for foster care and adoption.