B (A Child) (Adequacy of Reasons)

In proceedings for a placement order, the court must identify the specific threshold findings, fairly address each party’s core case and explain why material evidence has been accepted or rejected. Where adoption and parental care are realistic options, the welfare decision must be made under the Adoption and Children Act 2002 and by a holistic, side-by-side comparison of all realistic options. A court may not rule out parental care in a preliminary, self-contained exercise and then compare adoption only with an unadvanced alternative. An extempore judgment requires a clear structure; speed cannot excuse the omission of central issues or adequate reasons.

E had been in foster care for most of his life. The local authority relied on findings made in earlier proceedings concerning the parents’ older children, professional assessments, and concerns about insight, substance misuse, relationships and openness with professionals. The parents relied on evidence of changes since the earlier assessments, including abstinence from cannabis, improved housing and employment, and therapeutic work.

After a four-day final hearing, Recorder Sanghera made care and placement orders. The parents appealed, contending that the judgment did not adequately address the oral evidence or their case on change, failed to identify the threshold findings, applied the wrong welfare framework, and adopted a linear approach to the realistic options. The central issue was whether the reasoning sufficiently supported orders for E’s placement for adoption.

1. Appeal allowed. The care and placement orders could not stand. The reasoning did not sustain the decision and the serious procedural irregularity made it unjust. The proceedings were remitted to the Family Court for a rehearing.
2. The judgment failed to state the factual basis on which the statutory threshold was met. A court must identify whether the child is suffering, or is likely to suffer, significant harm at the relevant date, the category of harm, and the essential causative findings. Earlier findings may be relied upon, but the court must identify which findings support the present threshold and how they bear on the child’s current risk.
3. The judge did not adequately engage with the parents’ central case that sustained change had reduced future risk. The judgment substantially relied on written assessments made nearly a year earlier and gave no fair account of the parents’ oral evidence or of significant professional concessions. A party must be able to see why its case has failed: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. An oral judgment must therefore have a structure that identifies the issues, the core evidence and cases, disputed findings, evaluation, reasons and outcome.
4. The choice between parental care and adoption was a decision relating to adoption. It had to be determined under the welfare provisions of the Adoption and Children Act 2002, not by first deciding parental care under the Children Act 1989 alone. The statutory threshold remains a necessary condition, but it is incorporated into the placement-order process. The placement application is the primary application, although making a care order alongside a placement order remains sound practice.
5. Following Re B-S (Children) [2013] EWCA Civ 1146, Re G (A Child) [2013] EWCA Civ 965 and Re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, the court had to assess the advantages and disadvantages of every realistic option and compare them side by side. Having accepted parental care as realistic, the judge could not remove it by a preliminary evaluation before considering adoption. The resulting comparison of adoption with an unadvanced long-term fostering option was inadequate.

The Court of Appeal expressed no view on the merits of the local authority’s application. Updated evidence would be required at the prompt rehearing.

• Court of Appeal (Civil Division). Allowed the parents’ appeals, set aside the care and placement orders, and remitted the application for rehearing: [2022] EWCA Civ 407.
• Family Court, Nottingham. Recorder Sanghera made final care and placement orders after a four-day hearing in November 2021. No citation for that decision was stated in the judgment.