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S (A Child) [2013] EWCA Civ 1073

Appeal by mother against care and placement orders on the basis that the judge's orders were disproportionate. Appeal allowed and orders overturned.

In this judgment, decided before Re B-S, the Court of Appeal overturned care and placement orders following an appeal by the mother of a one year old. The focus of the appeal was whether the orders had been disproportionate. It was argued that the judge had not had sufficient information about the options for supporting the mother with the care of the child. The mother had learning disabilities. The case illustrates the difficulties of divisions within local authorities, as the adult team was supportive of the mother, whilst children's services did not agree. The services had failed to work together to properly assess the mother's needs.

The Court found that the judgment did not convey any real sense of the fact that the placement order should be a last resort. In relation to the order, the trial judge had said the following:

"The effect on her of that is that she will of course break the bond with her mother, she will have to form new bonds. The reassuring thing, from my point of view, is that she is young enough perhaps to not know as much about it as if she were a two, three, four or five-year old. Therefore, whilst the effect on her would be disturbing, the effects, I am satisfied, would not be long-term."  [para 36]

"The effect on her [of adoption] is ….that of course she will no longer be a member of M's family joint responsibility will be extinguished [sic] and that could have a damaging impact on her identity and emotional wellbeing. However, becoming an adopted parent [sic] will provide her with a permanent substitute family. It will provide her with people who are legally responsible for her and therefore they will be fulfilling parental responsibilities. If there is to be any contact that can be by letterbox so that she will, in the end, be able to know what her parents and her mother is like [sic] and will have access in the future if she wishes to contact her mother. Her protection is more important at the end of the day than having contact with or remaining with her family." [para 37]

The Court found that was not sufficient recognition of the orders that the judge was proposing to make, which were of huge consequence.  The judge had not justified how it was established that the child's welfare required adoption.

This judgment has since been added to by the judgment in Re B-S, which confirms and expands upon the observations above.

Summary by Jacqui Thomas, barrister, 37 Park Square Chambers

Case No: B4/2013/0831
Neutral Citation Number: [2013] EWCA Civ 1073

His Honour Judge Oliver

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 20/08/2013

Before :




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Elizabeth Isaacs QC (instructed by Baxter Harries) for the Appellant
Joanne Brown
(instructed by Wokingham Borough Council) for the Respondent

Hearing date: 16 July 2013
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Lady Justice Black:
1. K is 1 year old, having been born in July 2012.

2. On 8 February 2013, HHJ Oliver made a care order in relation to her with a care plan for adoption and then went on to make a placement order. K's mother (M) appealed against those orders by a notice of appeal filed on 27 March 2013. She was acting in person at that time but now has the benefit of legal representation.

3. Having heard argument, we allowed the appeal and overturned the care and placement orders, with the result that the case will return to the county court where there will be an urgent directions hearing before a different judge. We reserved our reasons which I now set out.

4. K had in fact been placed with adopters by the local authority (LA) on 9 April 2013, despite LA having had notice on 28 March 2013 that M had issued appeal proceedings. LA recognised that this was not in accordance with good practice and apologised unreservedly, explaining that it had not been their intention in any way to thwart M's appeal. Fortunately, the prospective adopters had been warned about the appeal before K was placed with them. We were told that it would be possible for K to remain with them for a period if the appeal were to be allowed. It is responsible and very generous of the adopters to offer this and they are to be commended and thanked for their approach.

5. On paper, M's appeal was advanced on three grounds by Miss Isaacs QC, who appeared for her on appeal but had not appeared at first instance. The first two grounds concerned the threshold which it was said the judge had been wrong to find established either on the basis of actual harm or likely future harm. The third ground was that in the alternative the judge was wrong to approve LA's care plan for adoption and acted disproportionately in making K the subject of care and placement orders.

6. At the hearing before us, Miss Isaacs did not particularly pursue the threshold grounds in her oral argument.  This was realistic, it seemed to me, as it would have been difficult for her to argue that the threshold was not made out as I shall explain in due course. When we parted with the case, having indicated that the appeal would be allowed, it was upon the basis that the matter would be returned to the county court for the welfare stage, but not the issue of the threshold, to be reheard. I should say, though, that I can see no way in which this case could properly be viewed as an "actual harm" case. LA intervened to protect K by taking care proceedings when she was only one day old and still in hospital. K had certainly not suffered any significant harm by then. The only proper basis for the threshold was likely future harm.

7. The real focus of the appeal was the third ground. Accordingly, the issue we had to address was whether the judge's orders were disproportionate. As developed in oral argument by Miss Isaacs, this included an examination of whether the judge had sufficient information available to him about the options for supporting M in her care of K when not living at One Step to be able to decide whether or not she may be able to do so satisfactorily.

8. M is in her mid-twenties. She has a learning disability which the expert who assessed her classed as "mild". Relying on his own expertise as Chairman of the Special Educational Needs and Disability Tribunal, the judge considered that she should be viewed as being at the "moderate learning difficulty level, at least". Whilst it is understandable that a judge with this experience may form his own views about an issue such as this, I think some caution needs to be exercised before overriding in this way the unchallenged evidence of a psychologist who had assessed M. Fortunately, nothing turns on this in the appeal.

9. M has two older children who are K's half siblings, namely J who was born in October 2008 and L who was born in November 2010.

10. Care proceedings were brought in relation to both J and L. J has been adopted and a care and placement order have been made in relation to L. M was represented by the Official Solicitor during the proceedings relating to those children because she then lacked capacity in relation to the litigation. However, a further psychological assessment in August 2012 led to the conclusion that her understanding had improved and that she had capacity to act without the Official Solicitor in the proceedings relating to K. She has therefore been instructing her representatives herself, although she does have the support of an adult social worker.

11. At the heart of the problems in this case has been the division of LA's work between adult social services and children's services. Both were, of course, involved with M and her children but they did not work together or form a consistent view of the case. The judge was rightly critical of LA for this and said that lessons needed to be learned from the case.

12. It was adult services who arranged for M to live at One Step which she began to do in March 2012. Up to that point, she had no fixed address and was staying with friends. She was, by then, pregnant with K.

13. When K was born, M was allowed to continue to live at One Step with the baby. One Step took on a monitoring role to ensure that K was safe. At the start, staff were with M and the baby throughout the day and the night. The level of supervision then decreased to half hourly visits and eventually to six visits a day. Other safeguards and supports were also in place, set out in written agreements.

14. However, One Step were instructed by LA not to carry out an assessment of M's care of K. The judge was not able to understand why that was. He was very critical of how LA had handled the matter, not least because on four occasions they had applied for the removal of K from M's care only to abandon each application on the day, which was very upsetting for M. He considered that M had been given mixed messages. Adult services were looking to support M as a parent. In contrast, children's services considered that M could not look after K in the longer term, yet when it came to it, they did not pursue their applications to remove K into care. The judge observed that "[w]here you have an adult with learning difficulties, with a young child, adult social care and children's services have got to learn to work together" (§21).

15. The judge was presented with a viability assessment dated 6 November 2012 which had been conducted by an independent social worker, Miss Orr. She had concluded that there was sufficient material already available, that the risk factors remained largely the same as had been identified in previous assessments, and that further assessment would not serve any purpose. That was also the position of LA. The hearing therefore proceeded on the basis of the evidence available from other sources.

16. There was no doubt that there were positive things to be said about M and her care of K although there were still features which gave rise to anxiety. It can be seen from the report of the psychologist of August 2012 that her "mood state" had improved so that she was no longer suffering from a depressive disorder and had experienced an improvement in her self-esteem and self-confidence and in her understanding of the proceedings so that she had capacity to conduct the litigation on her own. As for her care of K, LA accepted that this had been good enough whilst she was at One Step and she had met K's basic needs. The health visitor's report was positive and K had met her developmental milestones.  It was acknowledged that M had worked as hard as she could to achieve sufficient consistent change and had made progress, which the judge was told was often better than expected. She had taken advice which she was given. The social worker accepted that concerns relating to her lifestyle - her drinking, drugs and association with inappropriate adults - had been dealt with.

17. The concerns voiced in evidence included concern about whether M's care was sufficiently consistent and sustainable, about some observations of inappropriate behaviour by M towards K in some recent contact visits, about social isolation of M and K, about stimulation of K, about M's insight into the LA's concerns and about whether M could work with professionals, particularly social workers, who would need to assist her in her care of K.

18. The judge identified that the level of support required by M was one of the key issues in the case (§10). He heard evidence about this from Miss Orr, Miss Cook (who had been the manager of One Step at the material time) and Mr Pantia (the social worker from children's services).

19. Miss Cook indicated that the same level of support would be needed as was provided at One Step. Miss Orr's evidence was that it would need to be the same, if not greater.

20. Mr Pantia's position in his statement was that no alternative placement of M and K could ensure that K's needs were met. This appears to have been his position in oral evidence as well. He was concerned about whether M would be able to sustain what she had achieved in a semi-independent environment and he took the view that she would not be able to tolerate the necessary level of support and intervention. As the judge recorded it at §39, he said that what was required was something similar to what One Step was currently providing. His evidence was that if there was a need for visits two or three times a day, then one would have to ask, 'Why are we placing K in the community?'. 

21. The judge recorded that M herself, through her legal team, accepted that she needed support. She told the judge, as he recorded at §47 of his judgment, that she could work under a supervision order, that she would engage with the health visitor, that she could work with the social worker up to a point and that she would agree with what Miss Storey (from adult services) was proposing as a support package. 

22. What was being proposed by way of a support package appears to have been very unclear for much of the hearing. The judge found Miss Storey's evidence poor and unreliable in many respects. He said that it had been difficult for M's counsel to put forward a case about accommodation because "the adult social care really have not focussed on what they were trying to achieve for M" (§27). Miss Storey had been required to return to give evidence because there was not a clear picture of what was on offer. It appears that finally a package was proposed. Not much is known of the details but Miss Storey apparently said that she would try to replicate in the community the type and level of support M had had at One Step. The judge recorded that Miss Storey said adult services would "talk to children's services about what was necessary to support K, they would be talking to children's services about the whole package" (§38).

23. It is difficult for an observer who was not present at the hearing to be sure, on the material now available, what position was ultimately reached in the hearing on the question of support for M. The picture is confusing to say the least. On the one hand, it seems from the judgment that there was evidence that what was required for K's future care by M was that she should continue to be supported in the way she had been at One Step and there was evidence, from Miss Storey, that adult services would try to provide that. However, on the other, there seems to have been an obstacle to this. On 29 January 2013, there had been a meeting of representatives from adult services and children's services plus a director of a charity, Jigsaw, which supports people with learning difficulties. It seems that the approach at that meeting had been that adult services and Jigsaw would defer to children's services as to what was in K's best interests and would not go against their views which were that K should not be placed with M.

24. The judge seems to have determined that whatever support could be made available, a placement of K with M would not be appropriate.

25. As we can see from §52 of the judgment, the judge accepted that M had made progress. He said:

"I accept unequivocally that M has improved and made progress. There have been positive changes in relation to her lifestyle, in relation to her drug taking and her mixing with inappropriate adults. I accept that she has been learning lessons. I acknowledge likewise that what has happened in the last six months has been less than satisfactory. The residential placement without any proper assessment, the mixed messages coming from children's and adult services, the failure of adult services to engage properly with children's services at an early stage to have a united view as to what should go on and perhaps, as I say, the false picture painted to M by children's services, saying that she and K could stay together, if that was not their long term plan and they will not assess it now.

53. Her insight has increased, she clearly has a loving bond with K, she is understanding more about her role as a mother…."

26. However the judge was not satisfied about M's ability to work with professionals. He was also concerned about her vulnerability to exploitation. Furthermore, he observed that her progress had been made in a supported environment and commented:

"Take away the 24-hour support, things will change, I have no doubt, things will become more difficult. It is not going to be easy living in the community by yourself, with your child, with limited support. There will not be someone on hand 24 hours a day, there will not be someone coming in and waking you up, there will not be someone offering to change a nappy." (§53)

27. He echoed the social worker's question as to why, if the level of support needed was so high, K was being placed in the community. He did not consider that M had made enough progress yet for that to happen. He was not satisfied that she could "look after and protect K's physical and emotional wellbeing in a community environment" and felt that K would be at risk of harm which would outweigh the harm of taking her into foster care. He therefore decided that a care order would have to be made and having made that decision, he went on to make a placement order.

28. The general theme of the submissions made by Miss Isaacs on behalf of M was that the information that the judge needed to make a decision was simply not available to him.

29. Miss Isaacs stressed the deficiencies in the placement of M and K at One Step, which of course the judge had recognised. The consequence of there not having been a formal assessment of M was, Miss Isaacs said, that she would not have had the benefit of the dynamic teaching process that is a necessary feature of such an assessment, including discussion and detailed feedback which would have enabled her to remedy or improve her parenting as she went along. The court was therefore without the information upon which to determine what risks were involved in M caring for K in the community, she submitted.

30. Furthermore, the absence of a proper assessment of what M might need by way of support in the community by adult and children's services working together meant that it was difficult for the court to give consideration to the future. It was submitted that there was no solid evidence before the judge to support Mr Pantia's view that no suitable alternative to One Step could be found.

31. By the time of the hearing before us, Ms Storey had been replaced by Ms Burgess on behalf of adult services. She had come to court with M and we were told by Miss Isaacs that she wished to assure the court that services could be identified within the fortnight to assist M. She was apparently relatively confident that safe and secure housing could be arranged for M and the baby where they could live at least whilst an assessment was done. It was a pity that Ms Burgess's evidence was not available by way of a statement which Miss Isaacs could have invited us to admit as fresh evidence but we understand that Miss Isaacs was instructed at the last minute and there was not time to attend to this.

32. For LA, Miss Brown submitted that the judge had based his decision upon more than the availability of support in the community and that it was fully justified. She suggested that he had in mind a package of support such as was now being discussed but rejected it because of risks associated with features such as M's vulnerability and her inability to prioritise K's needs or to work with professionals.  He was able to rely also, she submitted, on the wider background, having recently dealt with the case relating to L.

33. It seemed to me that Miss Brown was realistically agreeing, during submissions, that we did not in fact know what arrangements could be made in the community. She was able to assure us that if the appeal were to be allowed, adult and children's services would work together on M's case. However, it was not yet clear, she said, that M herself was accepting that she needed to have a further assessment.

34. Judge Oliver's task in this case was made very much more difficult, it seems to me, by the deficiencies in the evidence available to him. M and K had spent months living together at One Step without a proper assessment being done. Children's services seem to have concluded nevertheless that despite the considerable progress M had made there, no suitable arrangements could be devised to keep M and child together once the One Step placement came to an end and to have reached this conclusion with no proper input from adult services. I do not see how they could securely arrive at this conclusion without a reliable assessment of M's likely future care of K and of her support needs and proper information about what could be made available to her by way of support in the community. Given these gaps in LA's work, it seems to me that Miss Isaacs was right to submit that the judge was without the information that he needed in order to be able to take a reliable decision that it was necessary to separate mother and baby despite the progress that M had made and her demonstrated ability to provide good enough basic care for K at One Step. It follows that in my view he was wrong to make a final care order with a care plan of adoption and a placement order.

35. Miss Isaacs submitted that furthermore a care order with a care plan for adoption and a placement order were disproportionate in this case. She invited attention to the observations of the Supreme Court in Re B (a child) [2013] UKSC 33. Re B is a forceful reminder that orders such as the judge made here are "very extreme", only made when "necessary" for the protection of the child's interests, which means "when nothing else will do", "when all else fails", that the court "must never lose sight of the fact that [the child's] interests include being brought up by her natural family, ideally her parents, or at least one of them" and that adoption "should only be contemplated as a last resort".

36. Judge Oliver's judgment does not convey any real sense of these considerations. Going through the welfare checklist in section 1(3) Children Act 1989 in determining whether to make a care order with a care plan of adoption, the judge considered the effect of such an order on K and observed:

"The effect on her of that is that she will of course break the bond with her mother, she will have to form new bonds. The reassuring thing, from my point of view, is that she is young enough perhaps to not know as much about it as if she were a two, three, four or five-year old. Therefore, whilst the effect on her would be disturbing, the effects, I am satisfied, would not be long-term." 

37. The judge did not say anything more, prior to making the care order, in recognition of the fact that the consequence of it would be likely to be a permanent severance of the relationship between K and M which would inevitably affect each of them throughout their lives. He did go on to recognise this expressly in the context of the placement order application when he said:

"The effect on her [of adoption] is ….that of course she will no longer be a member of M's family joint responsibility will be extinguished [sic] and that could have a damaging impact on her identity and emotional wellbeing. However, becoming an adopted parent [sic] will provide her with a permanent substitute family. It will provide her with people who are legally responsible for her and therefore they will be fulfilling parental responsibilities. If there is to be any contact that can be by letterbox so that she will, in the end, be able to know what her parents and her mother is like [sic] and will have access in the future if she wishes to contact her mother. Her protection is more important at the end of the day than having contact with or remaining with her family."

38. This was not, in my view, sufficient recognition that the orders that the judge was proposing to make were of huge consequence for M and K and were only to be made as a last resort. Matters were not helped by the judge forgetting to deal with the question of dispensing with M's consent to adoption. He said at §84 that he would have to do so but made the order without having returned to the point. He was invited to deal with it afterwards by counsel then representing M and said simply:

"having considered the welfare checklist set out in section 1(4) of the 2002 Act I am entirely satisfied that it is appropriate in those circumstances to dispense with M's consent". 

39. There is no reference in the judgment to section 52(1)(b) of the Adoption and Children Act 2002 which needed to be satisfied before the judge could make the placement order. It provides:

"(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that –

(a) ….

(b) the welfare of the child requires the consent to be dispensed with."

40. Had the judge considered this provision and the authorities on it, that would have reminded him that the interests of the child must render it necessary to make an adoption order, see Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125.

41. Very recently, in Re G (a child) [2013] EWCA Civ 965, McFarlane LJ made some extremely important observations about the proper approach to the judicial task in cases such as the present one. He stressed that it is not enough for judges simply to speak in judgments of adoption being a draconian option; there must be substantive consideration of what lies behind this and of the impact of such an order on the individual child's welfare in the particular case before the court (§53). It is the duty of the court, he said, "actively to evaluate proportionality in every case".

42. I accept Miss Isaacs' submission that Judge Oliver's judgment does not show that he gave sufficient recognition to the reality of the orders that he was being asked to make, nor did he, in my view, sufficiently justify how, on the evidence as it stood, it was established that K's welfare required adoption. I recognise, in so saying, the difficulties caused for the judge by the unsatisfactory nature of the evidence before him. I also acknowledge that he did not, of course, have the benefit of the judgments in Re B which have served as such a helpful reminder of how the courts should be approaching applications by local authorities which will involve severing the relationship between a child and his or her parent or of the recent decision of this court in Re G. But this deficiency in the judge's judgment underlines my decision that M's appeal should be allowed.

43. I said I would return to explain why, in my view, it would have been difficult to argue that the threshold criteria were not established. M's past history with her older two children was an important part of the background. The care and placement orders in relation to M's oldest child, J, were made in July 2009. The Official Solicitor, then representing M, did not dispute that the threshold criteria were established or oppose the care order. When L was born in November 2010, M was placed with him in a mother and baby foster placement but that broke down in January 2011 because of M's prolonged absences and her increasing lack of interest in L's care. It was conceded on M's behalf at the final hearing in November 2012 that the threshold criteria in relation to L were established in that at the material time (December 2010), she was not able to understand, meet and prioritise L's emotional and physical needs. The threshold document spoke of her as immature, vulnerable and impulsive. As for the situation as at K's birth, there appears to have been no debate but that M needed the considerable support of One Step to enable her to meet K's needs, One Step monitoring the situation continuously at the start.

44. In the light of this history, it is of no surprise that M's counsel appears to have conceded to Judge Oliver that at the relevant time there were grounds to find that K was at risk of suffering significant harm. This concession can be seen from §58 of the judgment. It was not suggested to us that the judge had misunderstood M's counsel's position about this. Accordingly, an appeal against the judge's acceptance that the threshold criteria were established was almost inevitably doomed to fail.

45. There are, nonetheless, some oddities in the treatment of the threshold criteria in this case. As far as I can see, we were not provided with a copy of the threshold document and I must infer some of the elements of it from the judge's judgment. He dealt only with the paragraphs of it that were contested. It is disconcerting to see that after acknowledging that the relevant time for the purposes of the threshold was when LA issued proceedings, the judge's consideration of the contested paragraphs of the threshold concentrated to a significant extent on later events. The explanation for this may well be that the threshold document itself was not confined to the situation in July 2012 but covered later events as well. What happened after the relevant threshold date is not necessarily irrelevant; it can reveal information about the situation at the relevant time. However, from what the judge said in §§59 to 77 of his judgment, it does not look as if matters were focussed in this way and his findings covered ground that would more appropriately have been the province of the welfare stage of the hearing. This no doubt accounted for the format of Miss Isaacs' submissions on appeal grounds 1 and 2 which also focussed on how matters had progressed during M's time at One Step with K. Care will have to be taken at the remitted hearing to ensure that threshold and welfare issues are properly separated. The judge undertaking the remitted welfare hearing will clearly wish to have the freedom to consider all the evidence about M's care of K and to make his own findings about it, untrammelled by Judge Oliver's findings on the subject.

46. Given that a detailed order was drawn up after the conclusion of the hearing before us which, as well as providing for the appeal to be allowed and the care and placement orders set aside, included case management directions in preparation for a directions hearing in the county court on 12 August 2013, I need say no more about the outcome of the appeal.

Lord Justice Kitchin
47. I agree.

Lord Justice Thorpe
48. I also agree.