W (care proceedings), Re

In care proceedings, the threshold under section 31 of the Children Act 1989 may be assessed by considering the totality of the evidence. Matters insufficient individually may be relevant cumulatively and in context. Later events may illuminate the position at the relevant date, provided the parties have fair notice and an opportunity to respond.

A judge may scrutinise and guide the local authority’s pleaded case to ensure that issues affecting the child’s welfare are properly addressed. Appellate courts should not interfere with first-instance fact-finding or case management absent clear error. Permission to appeal requires a real prospect of success or another compelling reason.

The mother sought permission to appeal against a special guardianship order made by the Family Court on 20 January 2023 at the conclusion of care proceedings. The order placed W with his maternal uncle and the uncle’s partner. The mother argued that the threshold under section 31 of the Children Act 1989 was not established and that W should return to her care or that of his maternal grandparents.

The proposed appeal concerned reliance on evidence arising after the relevant date, late amendments to the threshold document, reliance on unparticularised or hearsay allegations, the cumulative assessment of threshold evidence, and the comparison of welfare options. The Court of Appeal heard the application for permission only.

Permission to appeal was refused. The proposed appeal had no real prospect of success and there was no other compelling reason for it to be heard.

1. In a family appeal, permission depends on showing a real prospect that the first-instance decision was wrong or unjust because of a serious procedural or other irregularity. The appellate court will not ordinarily interfere with factual findings, the assessment of evidence or the weight attached to it unless there is a very clear justification. Intervention in case management is similarly confined to error of principle, reliance on irrelevant matters, failure to consider relevant matters, or a decision plainly outside the generous ambit of discretion.
2. The relevant threshold date was 19 May 2021. Evidence of later events could be considered where it illuminated the state of affairs at that date, consistently with the principles derived from Re G [2001] 2 FLR 1111. Fairness required the substance of the allegations and the intended reliance on them to be sufficiently clear. The mother had known the substance of R’s evidence for several months, and the late amendments caused no material disadvantage.
3. The judge was entitled, and in the context of care proceedings obliged, to scrutinise the local authority’s pleaded case and steer it towards the gravamen of the welfare issues. Care proceedings are not conventional adversarial proceedings in which issue identification is left entirely to the parties. The approach was consistent with the guidance in Re A [2015] EWFC 11.
4. The judge had been entitled to consider the alleged incidents collectively. Although each matter might have been insufficient alone, the totality of the evidence, including the surrounding circumstances and the mother’s disengagement, supported the threshold conclusion. The tolerance of diverse parenting standards identified in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 did not prevent a cumulative assessment.
5. The welfare analysis was shorter than the earlier reasoning, but it sufficiently explained why placement with the uncle and his partner met W’s needs and why the alternatives presented unacceptable risks. The special guardianship order was therefore fully justified.

• Court of Appeal (Civil Division) — On 6 September 2023, Lord Justice Baker refused permission to appeal: [2023] EWCA Civ 1251.
• Family Court — Her Honour Judge Jacklin KC made a special guardianship order on 20 January 2023 in favour of W’s maternal uncle and his partner.