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C (A Child) [2013] EWCA Civ 1257

Appeal of care and placement for adoption orders in which McFarlane LJ emphasises the need for trial judges to consider sections 1 and 52 of the Adoption and Children Act 2002 before approving a care plan for adoption where an application for a Placement Order is before the court or imminent

The appeal concerned a child, J, born in October 2011.  J's mother was 15 when he was born and the father was 17. A residential assessment was undertaken between April and July 2012. In July 2012 the local authority applied for, and was granted, an interim care order and J was placed with foster parents, where he remained until the final hearing.

At the final hearing, the Local Authority, supported by the children's guardian, CG, applied for a care order and placement order. EB, a maternal grandparent of J, intervened in the proceedings and applied for a special guardianship order for J. EB was registered blind and whilst born as a male had undergone gender reassignment beginning in March 2007 and ending in 2009. EB had been assessed by an independent social worker who supported the application for a special guardianship order. The mother supported EB's application and proposed herself as a carer for J only as an alternative to EB. She opposed adoption. The father played no active part in the proceedings but possibly sought contact if J was placed within the family. 

The judge found the threshold criteria had been met and determined that the mother was not an appropriate carer for J. This was not the subject of an appeal. The judge rejected EB's application for a special guardianship order and made a care order and thereafter proceeded to make a placement order. EB appealed. The grounds of appeal were that the judge was wrong to reach the conclusions he had based on the evidence available to him and he had failed to conduct a balancing exercise in which he evaluated the pros and cons of a placement with EB against the pros and cons of adoption. Finally, it was asserted that the judge had not addressed the proportionality of an adoption order and why in this case "nothing else would do".

The appeal was rejected. The leading judgment was given by McFarlane LJ who had given permission to appeal and had also indicated that further points might arise in view of the recent decision of Re B (a child) [2013] UKSC 33.  McFarlane LJ confirmed that within the appellate jurisdiction the court needed to be satisfied that the decision was "wrong" and not "plainly wrong". Interestingly, McFarlane LJ also acknowledged that Re B did not affect appeals in respect of case management decisions or appeals from a fact-finding determination. McFarlane LJ highlighted the recent cases of Re G (A Child) [2013] EWCA Civ 965 which provided guidance as to the necessary structure of a judgment where the welfare decision is a choice between two options for the child's future care and Re B-S (Children) [2013] EWCA Civ 1146. McFarlane LJ expressly endorsed the judgment of Mumby P. in the latter case.

McFarlane LJ was critical of the judgment in a number of respects; the judgment was linear in form and as a matter of structure it was difficult to identify whether the judge had conducted a balancing exercise in order to make the crucial choice between a home with EB or adoption by strangers. McFarlane LJ also stated that, unlike common current practice, any judge, who is aware that (either at the current hearing or at a hearing shortly thereafter) they will be considering whether or not to make a placement for adoption order, would be wise only to approve a care plan for adoption where such a plan seems likely to meet the welfare requirements of ACA 2002, s.1 and s.52. Therefore, in respect of the current appeal, it was a consequence of the linear structure that EB was ruled out at a stage where the judge was solely considering the welfare checklist in CA 1989, s 1(3) and before the judge, for the first time, made reference to ACA 2002, s 1(2) and to the enhanced welfare checklist in ACA 2002, s 1(4) with its focus upon the whole life nature of an adoption decision.

McFarlane LJ whilst critical of the judgment and in particular its "unhelpful" linear structure, he was satisfied that the judge had the relevant long-term factors in mind and had proper regard to the need for his decision to be proportionate. The judge's conclusion that a permanent, settled and secure home would not be attainable with EB was justified and not susceptible to being overturned on appeal. Further, despite questioning "the wisdom, when making a care order in the middle of the process of evaluating the ultimate question of whether or not a placement for adoption order is to be made, of 'approving a care plan for adoption' by reference only to the CA 1989, s.1 welfare provisions" the judge's findings would have led to the same decision had they been evaluated under s.1 ACA 2002.

Summary by Alison Easton, barrister, Coram Chambers

______________________


Case No: B4/2012/1669
Neutral Citation Number: [2013] EWCA Civ 1257

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
His Honour Judge Atkins
FC12C00078

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/10/2013

Before :

LORD JUSTICE PATTEN
LORD JUSTICE McFARLANE
and
LORD JUSTICE FLOYD
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 Re:  C (A child) 

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Miss Jacqui Gilliatt for the Appellant
Mr Martin Downs (instructed by the London Borough of Sutton) for the First Respondent
Miss Sally Bradley (instructed by McMillan Williams solicitors) for the Second Respondent

Hearing date: 6th September 2013
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Judgment
Lord Justice McFarlane:
1. This is an appeal by EB from the judgment of His Honour Judge Atkins dated 31 May 2013 and his consequent order.  The appeal concerns the care of a child, J, born in October 2011.  J was born to very young parents.  The mother was 15 years old when J was born and the father 17 years old.   In the early weeks and months of J's life there were a number of causes for concern about his safety which led to a residential assessment being undertaken between April and July 2012.  In July 2012 the local authority applied for and was granted an interim care order allowing J to be placed with foster parents, where he has been ever since. The application before the judge was for care and placement for adoption orders. 

2. EB, the appellant, is a maternal grandparent of J who intervened in the proceedings asking the court to make a special guardianship order for J pursuant to which J would be placed with her. EB is registered blind. In order to explain her place in the family it is necessary to say that EB was born as a male, but underwent gender reassignment beginning in March 2007 and ending in 2009.   The other members of the family relevant to the proceedings included EG, the maternal grandmother who was also registered blind.  The marriage between EG and EB broke down in 2007 around the time of the commencement of EB's gender transition, leading to a separation and then to a divorce in 2009. 

3. In addition to the parents and grandparents, there is W, J's maternal uncle.  The judge described W as providing valuable support to the mother during the proceedings.  He had also indicated his willingness to assist EB in the early months of his coming to live with EB.  J's children's guardian, CG, also participated in the proceedings and appears in this appeal.

4. Before the judge the positions of the various parties were as follows:

i) The local authority was asking the judge, firstly, to make a care order and to approve a final care plan providing for J's adoption, and, secondly, to make a placement order enabling the care plan to be put into practice.  The care plan involved a gradual reduction of contact to monthly and thereafter letterbox contact twice a year.

ii) CG supported the local authority.

iii) EB, as I have already mentioned, sought a special guardianship order placing J with her. She put forward what the judge described as detailed plans for J's care, indicating that she would accept supervision by the local authority if the court considered that to be in the best interests of J.  She further indicated that she would accept any other arrangement, if the court thought it right, including a residence order with the position to be formalised at a later date.

iv) The mother's position was in support of EB.  She proposed herself as carer for J only as an alternative to EB.  She was opposed to J being adopted.  That had not always been her position.  At an earlier stage she had favoured EG as a potential carer, saying that she did not consider EB to be suitable.

v) The father did not take any active part in the proceedings.  At the date of the hearing he had not seen J for over a year.  He had indicated that he wanted the local authority to decide what was in J's best interests.  If J was to be adopted he would not seek contact, but he would consider seeking contact if J was in a family placement.

5. The judge heard the applications over four days between 28 and 31 May of this year. He heard evidence from two local authority social workers and from an independent social worker. He also heard evidence from CG, the mother and EB. The local authority's social workers were in favour of the making of the care orders with placement for adoption and against the special guardianship order.  The independent social worker was supportive of EB's application for special guardianship.

6. The judge recorded that the mother had in the past displayed a number of behavioural problems.  She had been expelled from school.  Her behaviour was described as volatile and erratic and at times defiant and self-centred. There was a concern about whether she was able to ensure her own safety.  The father was someone who had problems controlling his temper and had on occasions behaved in a threatening and violent way. He had disengaged from J.

7. The judge was satisfied by evidence he had about the care given to J that he was "at risk of significant harm" (see judgment at [59]).  He concluded that the threshold criteria in section 31(2) of the Children Act was clearly satisfied.  There was no dispute about that issue at the hearing and consequently no challenge to it in this court. The issue which the judge had to decide concerned what, if any, order it was appropriate to make in consequence of that threshold being crossed. 

8. At [63] to [69] the judge considered the position of the mother as carer.  He recorded a number of "positives" about her, including that she was J's natural mother, that she had shown some improvements over the time she and J had been under residential assessment, that she was young and was still growing up.  However there remained serious concerns about the care she would give to J. These were that he could not be satisfied that she would keep J safe in terms of not leaving him unattended and other aspects of his care. He thought there was a risk of neglect, that the mother was at times unaware of J's presence and acted inappropriately, and was at times emotionally unavailable to J.  He thought that the mother was not really able to ensure her own safety, let alone that of J.  It is not necessary to rehearse all these matters.  The judge concluded at [66] that, as matters stood, the mother was not an appropriate carer for J.  It was not in J's best interests to approve her as such. There is no appeal against those findings.

9. EG had indicated in May 2012 that she had reluctantly decided that she did not wish to be assessed as a potential carer for J. 

10. Having so concluded, the issue for the judge was essentially whether, as the local authority contended, it was right to make the care and placement for adoption orders or whether, as EB contended, there should be a special guardianship order, or some other order placing J in the care of EB.  There were no other options on the table. The judge therefore proceeded to consider the evidence in relation to EB. 

11. EB had proposed a number of alternative plans for her care of J.  Under plan A there would be a transition period in which she would take 3 months unpaid leave from her work so that J could settle into her care but thereafter she would continue with full time work.  W would move in and support EB during this period. Plan B would be part-time work.  Plan C would be giving up work and relying on benefits, which the judge said would be unsustainable.

12. The judge held ([70]) that there were "a number of very important points to be made in [EB's] favour".  She was closely related to J, loved him and wanted the best for him.  The judge also accepted that EB now appreciated the concerns of the local authority, even though she had not done so fully in the past.  He considered this to be a point to her credit.  EB also had important positive qualities as a carer, namely (a) her intelligence and resourcefulness (despite her disability, EB held down an important and responsible job), (b) a demonstrated commitment to the care of J (c) the ability to display patience with J and deal with him in a quiet and calm manner and (d) the ability to listen to advice.

13. However he went on to make five specific findings, on which he subsequently relied, as to concerns about EB's suitability.  These were:

i) He doubted ([72]) EB's ability to deal with the mother.  He considered that if the mother had contact with J twice a week as proposed, it would be "confusing" for J. He considered that the very fact of the proposal for contact showed that the family and EB in particular underestimated the likelihood of difficulty with the mother.

ii) Although resourceful, as a single carer with a disability and work and financial commitments, he had real doubts about EB's ability to manage.

iii) EB would need a certain amount of help, for which the family would be the first port of call.  The mother still had quite a bit of growing up to do.  There were conflicts from time to time and likely to be conflicts in the future.

iv) He was concerned about EB's relationship with J.  After his birth, there had been a gap in contact between Christmas 2011 and July 2012. He did not attribute any blame to EB for this.  Although EB and the mother were in the process of forming a relationship, there was still some way to go.  He shared CG's concern about a recent incident when J was taken to EB's home and appeared to be upset.

v) Finally the Judge pointed to what he described as a "lesser concern".  He thought there was a potential source of a problem if the father was to seek contact with J.  The family had expressed what he described as "not a positive attitude" to the father. The judge later said that his decision was primarily based on the first four of the concerns.

14. Having considered these positive and negative factors in relation to EB, the judge went on to reject three matters which had been raised in relation to EB:

i) A suggested lack of emotional warmth from EB towards J;

ii) A suggestion that her motivation for seeking guardianship arose from feelings of guilt

iii) An incident involving EB's use of a knife in 2007 in a wholly different situation.

15. Having considered these matters the judge expressed his conclusions about EB at [80] as follows:

"What I have to do is to weigh up all the evidence and points that I have mentioned and look at what is in [J's] best interest and decide what I consider to be reflective of his welfare. The conclusion I have come to in relation to [EB] is that the concerns significantly outweigh the advantages. I agree with the guardian that [J] does need a settled and secure home now. I am not satisfied that it would be attainable with [EB]. I agree with the local authority and the guardian as to [J's] welfare and what is the best way forward in relation to that and I disagree with the independent social worker Gretchen Precey."

16. At [84] the judge summarised his conclusion that a care order should be made in the following way in the following way:

"I should spell out that throughout this judgment and throughout this case I have borne in mind that what I am being asked to do is approve a course of action which is a huge interference with the right to family life of [J] and indeed all the members of his family. A greater interference is hard to imagine. That is something I have borne in mind throughout, but the conclusion that I have come to I consider is justified and proportionate for the reasons that I have given their lives in pursuance of the legitimate aim, mainly the welfare of this child [J]".

17. The judge then went on to consider the application for a placement order separately in the closing paragraphs of his judgment.  The judge recognised that this application raised the additional issue of the parents' consent. He addressed his mind to the question in section 52(1) of the Adoption and Children Act 2002 in the following way at paragraphs 90 and 91:

"What section 52(1) of the Act says is the court cannot dispense with the consent of a parent unless the court is satisfied the welfare of the child requires the consent to be dispensed with. That of course brings into play the welfare principle set out in section 1 of the 2002 Act. Those principles are well known, they are similar to but in important respects different from the welfare of principles in section 1 of the Children Act. Again I do not propose to set them out fully, but I specifically mentioned section 1(2) which says that the paramount consideration of the court must be the child's welfare, throughout his life. A somewhat different emphasis from that in section 1 of the Children Act.

Similarly 1(4) refers to the checklist in relation to the application of a placement order. Again the checklist is different from the checklist in the Children Act in important respects.  In particular section 1(4)(c) refers to the likely effect on the child throughout his life of having ceased to be a member of the original family and at (f) the relationship which the child has with relatives, or any other relevant person. I very much bear those factors in mind. I think they are important factors. Nevertheless, for the reason I have given I consider that the welfare of J does require me to dispense with the consent of the parents to his placement and adoption. I am therefore going to dispense with the consent of the parents and make a placement order sought by the local authority."

18. In her grounds of appeal, EB challenges the conclusion which the judge reached.  I gave permission to appeal on those grounds but further indicated that points might arise in view of the recent decision of the Supreme Court in Re B (a child) [2013] UKSC 33.  That decision emphasised that the making of an order which removed a child from its natural family was a measure of last resort, only to be adopted where it is "necessary" and when "nothing else will do".  I also pointed out that the Supreme Court had clarified the approach which an appellate court should take when reviewing the proportionality of an adoption order.  It was no longer correct to say that an appellate court should interfere only when the judge's assessment was "plainly wrong".  In view of the court's duties under the Convention, an appellate court should be able to conduct its own assessment, and arrive at a contrary conclusion to the judge if persuaded that his assessment was wrong.

19. EB's more detailed grounds of appeal challenge the judge's conclusions from the evidence, and his supposedly wrong reliance on, or failure to give weight to, particular matters.  A summary of the principal points is as follows:

i) She challenges the judge's conclusion that she would not be able to manage the practical side of looking after J given her resourcefulness and intelligence.

ii) She challenges the judge's conclusion about the difficulties that would arise between EB and the mother.

iii) She challenges the judge's conclusion about the lack of, and difficulties associated with, obtaining support from other family members; she submits that the judge failed to consider or weigh in the balance the likely continued support from EG and W, and the value of those relationships continuing.

iv) She submits that the judge failed to give weight to the potential advantage of J continuing to have a relationship with his mother.

v) She submits that the judge failed to address the inadequacies of the local authority's support plan, and the local authority's failure to advise EB;

vi) She submits the judge misinterpreted the evidence concerning J's distress during the contact at EB's home;

vii) She submits that the judge should have held that any risk represented by the father's contact could be contained.

viii) She finally submits that the judge gave insufficient weight to the evidence of the independent social worker.

20. These grounds of appeal have given rise to lengthy skeleton arguments on behalf of both the local authority and CG in which they support the judgment of HHJ Atkins on each of the detailed points raised by EB. 

21. In the course of her oral submissions, although she was keen to emphasise the particular factors in favour of a special guardianship order, Miss Gilliatt's primary submission was that the judge failed to conduct a balancing exercise in which he evaluated the pros and cons of a placement with EB against the pros and cons of adoption. She also submitted that at no stage did the judge confront in an effective way the need to sanction a placement for adoption only where that is proportionate to all of the circumstances; that is when 'nothing else will do'.

22. In response, Mr Downs for the local authority accepted that although the analysis section of the judgment is very succinct, it does identify the judge's thinking. In particular (at paragraphs 61 and 80) the judge prioritises J's need now to find a settled, secure and permanent home. The key judicial conclusion, therefore, was that at paragraph 80 where the judge concluded that a settled and secure home would not be attainable with EB. Miss Bradley, for the guardian, endorsed those submissions.

Legal Context
23. This appeal came on for hearing not long after this court had handed down judgment in the case of Re G (A Child) [2013] EWCA Civ 965 which, in part, focussed upon the necessary structure of a judgment where the welfare decision is a choice between two options for the child's future care.

24. Subsequent to the hearing of this appeal, another constitution of the Court of Appeal has handed down judgment in Re B-S (Children) [2013] EWCA Civ 1146 [The Master of the Rolls, Sir James Munby P and Black LJ]. In Re B-S, Sir James Munby P, giving the judgment of the court, draws upon a number of contemporaneous decisions of the Court of Appeal concerning the structure of a judgment when making these life-changing welfare choices. In a section from paragraph 41 of his judgment, The President distils the essentials of what is required as follows:

'Adoption – essentials: (ii) adequately reasoned judgments
41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ's criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

"the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis."

She added (para 124): "there is little acknowledgment in the judge's judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case."

42. The judge must grapple with the factors at play in the particular case and, to use Black LJ's phrase (para 126), give "proper focused attention to the specifics".

43. In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

"In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."

We need not quote the next paragraph in McFarlane LJ's judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

44. We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."

45. McFarlane LJ added this important observation (para 53) which we respectfully endorse:

"a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is 'the most draconian option', yet does not engage with the very detail of that option which renders it 'draconian' cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the 'draconian' nature of permanent separation of parent and child and they frequently do so in the context of reference to 'proportionality'. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child's welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case."

46. We make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance in what are amongst the most significant and difficult cases that family judges ever have to decide. Too often they are given scant attention or afforded little more than lip service. And they are important in setting the context against which we have to determine the specific question we have to decide in relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.

25.  In addition to the topic of judgment structure, the court in Re B-S sought to draw together the judicial interpretation at Court of Appeal level that was at that stage available on the role of the appellate court in the light of the clarification given by the Supreme Court decision in Re B. Again it is convenient to quote from the section of The President's judgment starting at paragraph 71:

'The appellate approach
76. We can take this fairly shortly because the application of Re B in various family law contexts has been considered in a number of recent judgments in this court of Black LJ and McFarlane LJ: see Re A (Children) [2013] EWCA Civ 1026, Re V (Children) [2013] EWCA Civ 913, Re P (A Child) [2013] EWCA Civ 963, Re G (A Child) [2013] EWCA Civ 965 and, most recently, Re A (A Child) [2013] EWCA Civ 1104.

77. We do not need to go through Re B yet again, except to note that it leaves undisturbed the approach in case management appeals set out by this court in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250: see Re B para 45 (Lord Wilson). Nor does the new learning in Re B affect the traditional approach to appeals from fact-finding determinations: Re A (Children) [2013] EWCA Civ 1026, para 34.

78. For present purposes the key principles to be extracted from Re B are conveniently summarised in the judgment of McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965, paras 32-33:

"32 The second aspect of the Supreme Court decision in Re B which is relevant to the present appeal arises from their lordships' clarification of the necessary role of an appellate court where there is a challenge to the proportionality of a public law order authorising local authority intervention under CA 1989. Whilst the type of intervention considered in Re B was adoption, in my view the approach to be deployed must similarly apply to lesser forms of intervention. On this aspect the majority of the Justices (Lord Neuberger, Lord Clarke and Lord Wilson) concluded that the duty on a court, as a 'public authority', not to act in a manner which is incompatible with the Convention under Human Rights Act 1998, s 6(1) does not mandate the appellate court to undertake a fresh determination of a Convention-related issue (paragraphs 37, 83 to 90 and 136). The majority did not therefore hold that there was a need for a radical departure from the conventional domestic concept of a 'review' of a case on appeal, as opposed to a full re-appraisal on the issue of proportionality. The traditional appellate approach to issues of pure judicial discretion has been that of recognising the generous ambit of reasonable disagreement and only intervening where the judge's decision is seen to be outside that ambit and is 'plainly wrong' (per G v G [1985] 1 WLR 647). All five SCJs however identified that that ('plainly wrong') approach does not apply to an appellate review of the evaluative determination of whether the s 31 threshold is crossed; such a review is to be conducted by reference simply to whether the determination is 'wrong' (paragraphs 44, 91, 138 and 145).

33  Moving on from consideration of the s 31 threshold criteria, all five SCJs were agreed that the task of a trial judge making the ultimate determination of whether to make a care order was 'more than to exercise a discretion' (Lord Wilson SCJ, paragraph 45). The trial judge's task is to comply with an obligation under HRA 1998, s 6(1) not to determine the application in a way which is incompatible with the Art 8 rights that are engaged. The majority in the Supreme Court went on from that unanimous position relating to the role of the trial judge, to hold that 'the review which … falls to be conducted by the appellate court must focus not just on the judge's exercise of discretion but on his compliance or otherwise with an obligation' (paragraph 45). The 'plainly wrong' criteria in G v G being held to be 'inapt' for such a review."

79. The point was put succinctly by Black LJ in Re P, para 105:

"Because of the obligation of the trial judge not to determine the matter in a way which is incompatible with article 8 ECHR, the review by the appellate court must focus not just on the judge's exercise of his discretion in making a care order but also on his compliance or otherwise with that obligation"

80. In Re B itself, Lord Neuberger had said this (para 93):

"There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable."

He went on to say that the appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (v) to (vii).'

26. Although the judgment in Re B-S was not available to this court during the oral hearing of the appeal, it has not been necessary to invite further submissions from the parties in the light of Re B-S as that decision in many respects draws upon and endorses the clutch of decisions handed down in this court in July 2013 which were, of course, available for deployment at the oral hearing.

27. For the purposes of the discussion that follows, it is necessary to set out the different provisions relating to the evaluation of a child's welfare that are found in CA 1989, s 1 and in ACA 2002, s 1.

Children Act 1989
Welfare of the child.
(1)When a court determines any question with respect to—

(a) the upbringing of a child; or

(b) the administration of a child's property or the application of any income arising from it,

the child's welfare shall be the court's paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

(4) The circumstances are that—

(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or

(b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV.

(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

Adoption and Children Act 2002
Considerations applying to the exercise of powers
(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.

(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.

(4) The court or adoption agency must have regard to the following matters (among others)—

(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b) the child's particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,

(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.

(5) In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.

(6) The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7) …

(8) For the purposes of this section—

(a) references to relationships are not confined to legal relationships,

(b) references to a relative, in relation to a child, include the child's mother and father.

Discussion
28. I have found this a troubling case. As a matter of structure the judge has made it difficult for readers of the judgment to see that he has in fact conducted a balancing exercise in order to make the crucial choice between a home with EB or adoption by strangers. The judgment is 'linear' in form, despite the fact that, at paragraph 63, the judge identifies

'one alternative here is the local authority's care plan which is clearly in this case a realistic and achievable plan but the question is whether it is in J's best interest. To decide that I have to look at the alternatives.'

What then follows is the section of the judgment (summarised at paragraph s 8 to 14 above) in which the judge looks at each of the family members, including EB, before concluding that she is unable to offer the stable and settled home that J needs. That sequence is not, on its face, a consideration of what was the true alternative choice before the court, namely one between adoption or placement with EB.

29. Further, where the court is seized of both an application for a care order and an application for a placement for adoption order, I would question the wisdom, when making a care order in the middle of the process of evaluating the ultimate question of whether or not a placement for adoption order is to be made, of 'approving a care plan for adoption' by reference only to the CA 1989, s 1 welfare provisions. In common with the practice of many family judges, that was the course taken by the judge in the present case. It is, however, a practice which may inadvertently lead the court away from engaging with a proper, holistic evaluation of the central welfare question and, where placement for adoption is an issue, doing so within the structure of ACA 2002, s 1 rather than CA 1989, s 1. Any judge, who is aware that (either at the current hearing or at a hearing shortly thereafter) he or she is going to be considering whether or not to make a placement for adoption order, would be wise only to approve a care plan for adoption where such a plan seems likely to meet the welfare requirements of ACA 2002, s1 and s 52.

30. By way of example, it is a consequence of the linear structure in the present judgment that EB is ruled out at a stage where the judge is solely considering the welfare checklist in CA 1989, s 1(3). He then goes on to make the care order and to approve the care plan for adoption (paragraph 85). It is only after that point that the judge, for the first time, makes reference to ACA 2002, s 1(2) and to the enhanced welfare checklist in ACA 2002, s 1(4) with its focus upon the whole life nature of an adoption decision.

31. The CA 1989 welfare checklist must, by reason of CA 1989, s 1(4)(b), be used when the court is considering making a care order under s 31. A linear judgment, which unnecessarily compartmentalises the decision making into discrete and separate stages ('care order' and only then 'adoption'), with the 1989 Act provisions alone being used to approve a plan for adoption, in some cases may prevent the evaluation of what is ultimately the one issue in the case, the choice between family placement or adoption, as a whole and for that evaluation to be undertaken with the tailor-made, adoption focussed, welfare checklist in ACA 2002, s 1 at the forefront of the judicial mind.

Conclusion
32. In the present case, as I have described, the judge has made it difficult to see that he has in fact confronted the essential choice between a placement with EB or adoption, and done so in the context of ACA 2002, s 1. Despite the unhelpful structure of the judgment, however, I do consider that the judge did have the relevant long-term factors in mind:

a) Having cited the four/five central adverse findings that he made against EB as a carer (see paragraph 13 above) his conclusion that a permanent, settled and secure home would not be attainable with her is justified and, in my view, not susceptible to being overturned on appeal;

b) The factors relied upon to rule EB out are long-term in nature and, I am satisfied, that despite the use of the CA 1989, s 1 checklist at that stage of the judgment, the same findings would have led to the same decision had they been evaluated under ACA 2002, s 1;

c) The judge was plainly focussed on long-term, whole life planning and his decision that EB could not provide a sufficiently stable and settled home was made in the context of there being only one other alternative, namely adoption;

d) The judge clearly had the provisions of ACA 2002, s 1 and s 52 in his contemplation and paragraphs 90 and 91 (see paragraph 17 above) indicate that he had those factors in mind, he considered them to be important, but nevertheless he considered that J's welfare required adoption. I should indicate that for some reason the Note of Judgment that was before me when I granted permission to appeal did not contain any reference to the content of these two key paragraphs;

e) In terms of proportionality, at paragraph 84 (see paragraph 16 above) the judge indicated that he was fully aware that it is hard to imagine a greater degree of interference in the right to family life of J and his family, but, for the reasons that he had given, namely his adverse conclusions as to EB's ability to provide a long-term secure home, he considered that the course chosen was justified and proportionate as being in the child's best interests.

33. In the circumstances, and despite the critical observations that I have felt driven to make as to the structure of the judgment, I am satisfied that the judge did engage sufficiently with the core, long-term welfare decision in this case and, despite understanding all that EB undoubtedly has to offer J, I consider that the adverse findings that the judge made against her must stand. In the light of those findings the judge's decision was proportionate and, in the context of J's welfare, is not 'wrong'. As a result of those conclusions, I would dismiss this appeal.

Lord Justice Floyd:
34. The narrative of the judge's judgment certainly led me, on a first reading, to believe that he was considering only what could be said for and against each potential carer, without conducting a side by side comparison with adoption.  The task for an appellate court in deciding whether the judge's assessment of proportionality was wrong is rendered much more difficult in those circumstances.  But I was in the end satisfied by the submissions of Mr Downs for the local authority that in the present case we cannot conclude that the judge's assessment was wrong.  As McFarlane LJ has explained, the judge had in mind throughout the extreme seriousness of taking the adoption route.  I am not able to say that the judge's view was, on balance, wrong. I agree that the appeal should be dismissed for the reasons which McFarlane LJ has given. 

Lord Justice Patten:
35. I also agree.