Re C & Ors (Care Proceedings: Adequacy of Reasons)

A court considering adoption or another profoundly interventionist public-law order must conduct a rigorous, holistic comparison of every realistic option. It must assess the nature, likelihood and consequences of harm in a family placement, the scope for reducing or mitigating that harm, and the harm caused by separation. Adoption is permissible only where it is necessary and proportionate to the child’s lifelong welfare.

The judgment must show that analysis. Reciting evidence, citing welfare checklists, or adopting counsel’s summary of the law cannot replace a reasoned evaluation and explanation of why one outcome was chosen. Clarification cannot be used to construct, after the event, reasoning that should have preceded the decision.

Care proceedings concerned five siblings. After a fact-finding hearing, the recorder made unchallenged findings that the appellant mother had physically abused the four older children and that the father had failed to protect them.

At the final welfare hearing, the local authority sought care orders for the children and a placement order authorising adoption for E. The parents proposed rehabilitation for C and D and, for E, continued care by the appellant under supervision. Although E had been well cared for in a mother-and-baby unit and had a close attachment to her mother, the professional witnesses supported adoption because of the assessed future risks.

The recorder made care orders for C and D and a care order and placement order for E. The mother appealed, alleging inadequate analysis of future harm, proportionality, realistic options and the welfare checklists. The central issue was whether the recorder had given legally adequate reasons for the welfare decisions.

Decision

1. The appeal was allowed. The care orders concerning C and D, and the care and placement orders concerning E, were set aside. The welfare issues were remitted for a fresh hearing before a different judge.

2. Article 8 required any permanent severance of family ties to be necessary and proportionate. Following Re B (Care Proceedings: Appeal) [2013] UKSC 33, Re G (A Child) [2013] EWCA Civ 965, Re B-S [2013] EWCA Civ 1146, Re H-W (Children) [2022] UKSC 17 and Re D (A Child: Placement Order) [2022] EWCA Civ 896, the court had to evaluate and compare all realistic outcomes. That exercise included the likelihood and consequences of harm in the family placement, the possibilities of reducing or mitigating it, and the harm arising from separation. Adoption could be selected only if that comparison validly established that it was necessary, proportionate and the only outcome meeting E’s lifelong welfare needs.

3. The recorder had cited the relevant welfare checklists but had not analysed any of the three children’s options by reference to them. His recitation of evidence did not evaluate risk, mitigation, or the competing advantages and disadvantages of family care and adoption. In E’s case, it did not balance her secure maternal attachment and satisfactory care in the residential unit against the professionals’ assessment of future risk. The conclusory statements at the end of the judgment could not supply that missing analysis.

4. A judgment must make clear the material evaluation and why one realistic outcome was preferred. Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407 did not prescribe a rigid format, but the critical processes are evaluation and explanation. A judgment may be read as a whole, but an appellate court may fill in only evident missing pieces; it cannot reconstruct the entire reasoning process. Nor could an addendum extracted from counsel’s submissions identify and apply the law for the judge.

5. Clarification was inappropriate. It may cure a genuine ambiguity, omission or query, but cannot re-argue the case or provide an ex post facto rationalisation where the recorded omissions make the decision’s basis indiscernible. Once permission to appeal has been granted, a party must obtain the appellate court’s express approval before seeking clarification from the first-instance judge.

• Court of Appeal (Civil Division). In Re C & Ors (Care Proceedings: Adequacy of Reasons) [2023] EWCA Civ 334, the court allowed the mother’s appeal, set aside the welfare orders concerning C, D and E, and remitted the welfare issues for a fresh hearing before a different judge.

• Family Court at East London. Recorder Main Thompson made care orders for C and D and a care order and placement order for E after the final welfare hearing.