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Home > Judgments > 2016 archive

H (Children) [2016] EWCA Civ 1131

Appeal by mother against placement orders in respect of her three youngest children on the grounds that that judge’s approach was not Re B-S compliant. Appeal allowed and remitted for rehearing.

Relevant facts
The court was concerned with three children aged 6, 5 and 2. The mother had ten children in total, all of whom had at some point been involved with Children's Services and subject to care proceedings. In September 2013 proceedings were issued by the local authority following allegations made by an older sibling against the children's father and concerns regarding the general level of neglect in the family home, and in January 2015 Judge Sharpe made full care orders. However, at no point were the three children removed from their mother's care. A safety plan was agreed that included the requirement that the father stay away from the family home. In June 2015, however, following allegations by an older sibling 'O' that the father had been at the home in breach of the safety plan, the local authority sought removal of the children, who were placed together in foster care.

In considering the allegations made by 'O' in a fact-finding hearing, Judge Sharpe had before him the transcript of O's ABE interview, evidence from the social worker and her notes, and oral evidence from the parents and an older sibling. Judge Sharpe found the allegations made by O proved, to include findings that the safety plan had been breached and that the children had been forced to lie to professionals about their father's presence, and relevant to this appeal, the fact that O had been dangled over the bannisters by his armpits by F. Notwithstanding those findings, Judge Sharpe declined to make final orders (the local authority having applied for placement for adoption orders) and decided instead to give the parents a final chance to see how, if at all, their reflection on the court's findings might impact their parenting.

When the matter returned before Judge Sharpe on 11 March 2016, the situation had not improved and the local authority continued to seek placement for adoption orders. The court considered that the father continued to pose a risk to the children and that the mother could not be trusted to protect the children from the father. Judge Sharpe then went on to say "Having rejected the one alternative placed before me, I consider that the position has been reached where nothing else will do for these children but the making of placement orders…"[28].

The appeal
The mother appealed the decision on several wide-ranging grounds; permission to appeal was granted by Theis J on Ground 2 (relating to the judge's finding about F holding O over the bannisters) and Ground 4 (that the judge had failed to afford the required respect and approach dictated by Article 8 ECHR).

The appeal was heard by McFarlane LJ (delivering judgment) and Laws LJ. 

Ground 2:
The mother argued that Judge Sharpe had been wrong in that no reason was given for him preferring O's account over that of his sibling (or parents), and no consideration given of the fact that O's account in the ABE interview had differed from what O had told a social worker. The mother argued that the judge had 'reversed' the burden of proof in asking rhetorically why O would lie about something before concluding that he had not and preferring his account.

The Court of Appeal held that the judge had afforded proper weight and consideration to the ABE interview and was justified in finding O's account in that interview to be credible notwithstanding the discrepancy with what he told the social worker (which could be explained by the circumstances). Moreover, the Court found that this had been just one finding within a raft of others and that proportionality was required when looking at the 'fine detail of a judgment on a particularly narrow point when there is a whole range of allegations to be considered' [53]. The Court considered that that whilst the judgment may have fallen short of the standard required by Re: V [2015] EWCA Civ 274, it did not materially affect the court's subsequent decisions nor would it on itself merit a re-hearing of the welfare decision.

Ground 4:
The mother argued inter alia that the judge had erred in adopting a linear approach in reaching his conclusion, having rejected the option of returning the children to their mother and subsequently accepting the alternative of adoption, without embarking on a full balancing exercise of the pros and cons of each placement, and without giving any consideration to the possibility of long term foster care. The local authority argued that the Court should read the judgment within the context of Judge Sharpe's other detailed judgments within the proceedings which reflected consistent careful analysis and an overarching awareness that adoption must be the last resort (hence, for example, declining to make final orders after the fact find in the hope that the parents may yet turn it around). The LA also submitted that the option of long term foster care simply hadn't been put before the court by any of the parties.

The Court of Appeal upheld the mother's appeal on Ground 4. It considered that whilst the judge was clearly experienced and very familiar with the case, the requirement in Re B-S to give an adequately reasoned judgment had not been met, and that the comment at para 28 could not be 'anything other than the description of a linear approach' [79]. In respect of the absence of consideration of long term foster care, the Court of Appeal noted that the Guardian had not supported the LA's proposal at first instance that if an adoptive placement for all three children was not found, a placement for the youngest should be considered; in the Guardian's view the three children should not be separated. The Court also accepted the submissions that the children had grown up knowing their seven siblings, and that the impact of severing so many ties had not been properly evaluated. Accordingly, the Court of Appeal held that judge's analysis fell short of the requisite global holistic evaluation of all the available options, and, despite the inevitable negative impact on the children of allowing the appeal and incurring further delay, held that the appeal must succeed and the matter be remitted.

Summary by Esther Lieu, barrister, 3PB
_____________________________

B4/2016/1256
Neutral Citation Number: [
2016] EWCA Civ 1131

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CIVIL & FAMILY JUSTICE CENTRE
SITTING IN SWANSEA
(HIS HONOUR JUDGE SHARPE)

Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 7 September 2016
 
B e f o r e:

LORD JUSTICE LAWS
LORD JUSTICE McFARLANE


IN THE MATTER OF H (CHILDREN)

DAR Transcript of the Stenograph Notes of 
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(Official Shorthand Writers to the Court)

 
Mr J Tillyard QC and Miss S Parry (instructed by Full Stop Law) appeared on behalf of the Applicant
Mr C Geekie QC
and Miss L Leader (instructed by The City and County of Swansea) appeared on behalf of the Respondent

J U D G M E N T
(Approved)
 
Crown copyright©

1. LORD JUSTICE McFARLANE:  This is an appeal brought by the mother of the three children who were the subject of the proceedings against final orders made by His Honour Judge Sharpe in the Family Court sitting in Swansea on 11 March of this year.  The three children concerned are two boys, one aged 6 and one aged 5, and a girl who is now 2 and a half.  Previously the same judge had made full care orders with respect to each of these three children on 20 January 2015. 

2. The case has a very substantial history.  The mother has given birth to no fewer than 10 children by three different men.  In addition, proceedings have been taken with respect to another child who was the child by a different mother of the father of these three younger children.  The mother's tenth child was born since the orders made by Judge Sharpe, a baby less than a month of age who is now the subject herself of fresh public law proceedings. 

3. It is not necessary in this judgment to summarise the background in any detail at all.  There have been longstanding concerns as to the mother's ability, either alone or in combination with her various partners from time to time, to provide safe and good enough care for her various children.  A watershed was reached in 2008 when care proceedings were commenced with respect to the children that were then alive.  The outcome of that was that for a time four of them went to live with the maternal grandmother and two went to live with their own father. 

4. By 2009 those four children who had gone to the grandmother were returned to the mother's care.  She moved to Swansea to live with the gentleman who I will call the father, because he is the father of the three children who are the subject of these proceedings.  The household there, in addition to the mother's four children, contained an older girl, J, who was the child that the father had by a different relationship.  Matters seem to have proceeded on a fairly even keel until September 2013 when that girl, J, made allegations against the father.  Proceedings were commenced not only with respect to those allegations but because of general concern about the level of neglect, as it was seen to be, that the Social Services found to be prevalent in the family home. 

5. So these three children were brought before the court within those proceedings.  T was born during the currency of the proceedings.  That is the basis upon which she came to be before the court.  But all the children remained living with the mother during the currency of those care proceedings.  There was no removal under an interim care order.  So the three children that this court is concerned with all remained in touch on a day to day basis with each other, their mother and, insofar as they saw each other, other siblings who did not live in that family home.  At the conclusion of that process, as I have already indicated, full care orders were made but the care plan was for the children to remain with the mother and be looked after by her. 

6. The matter came before Judge Sharpe once again in September 2014.  By that time there had been fresh allegations made with respect to the care of the children.  It was necessary for the judge to make findings of fact about that.  Those were primarily concerned with the allegations made by J, but also matters of more general neglect that I have described. 

7. At the conclusion of a full judgment, about which there is no complaint at all, given on 11 September 2014 the judge made findings of fact sufficient to cross the threshold.  He then adjourned the case for a period of some four months, primarily, as I read the papers, in order to allow the mother and the father of these younger children to take on board the findings that had been made.  So far as the father was concerned, the findings were to find proved, to very substantial measure, the allegations of physical abuse that J had made against him and his potential from time to time to act in an overbearing and controlling manner, on one occasion, by example, "trashing" her room as a form of punishment for actions of which he did not approve. 

8. After that period of reflection, the case came back in January and the judge made the full care orders on that occasion, but again he did not sanction the removal of the three children from the mother's care.  The plan that the parents put forward to the court was for the father to undertake some work, a period of reflection and a period of working with the social workers so that over time he could be rehabilitated to the family home.  He was living elsewhere at that stage. 

9. To protect the children in the meantime what has been referred to as a "safety plan" was agreed with the parents and required by the local authority.  The bottom line of the safety plan was for the father to stay away from the family home, save and except when he was permitted to go there by agreement with the Social Services to see the children or to see the children elsewhere.  The judge made plain in endorsing the orders that he made in January 2015 that any substantial breach of the plan would lead to the abandonment of the placement of the children with the mother and may well lead to their permanent placement elsewhere. 

10. Matters proceeded.  As this court understands it, the Social Services were largely unaware that there was any substantial breach of the safety plan until one of the mother's older children, a boy, O, who is now aged 13, made complaint in early June 2015 that the reality of the situation in the family home was utterly to the contrary.  O was living in the family home at that time.  He reported that the father was very substantially back at home and living with the family. 

11. He made a number of complaints about the father's behaviour and life in the home.  In particular, he described how the children had all been required to be prepared to lie about the father's presence in the family home if asked.  They were required, if they ever referred to him in conversation, to attribute to him an entirely false name so as to deflect any concern of anyone who heard them from understanding they were talking about the father.  Further, other specific lies were reported by the boy, O, as being required of these very young children by their parents. 

12. In addition to making this global assertion as to life in the family home, he reported to the social worker that on one occasion in the morning when this busy household was getting ready for the children to go off to school, he had refused or was playing up.  The father's reaction was to pick him up and hang him over the banisters from the upper storey of the house.  The social worker's note records him saying that this was hanging "by his ankles". 

13. As a result of what O had said, the local authority considered that the safety plan was not tenable and that the children's welfare required for them to be immediately removed.  They gave notice to the parents that that was to happen.  Sensibly, the parents brought the matter back to court immediately by applying for the discharge of the care orders and for the court to grant an injunction restraining the local authority from removing the children.  In commending the parents for coming back to court, I make no observation one way or the other as to whether an injunction would have been available in these circumstances in this case.  Be that as it may, Judge Sharpe, who heard the case again, having considered the detail that was available, endorsed the local authority plan.  The children were duly removed on 12 June 2015 to foster care where they remain, all three of them living together. 

14. O was taken to a police station and interviewed under the umbrella and structure of the Achieving Best Evidence guidance.  That was on 3 July 2015.  In that interview he repeated the detail of some of the matters that I have referred to.  In particular, he repeated the allegation that he had been handled so that he was over the banisters in the house, but on two or three occasions during the interview he said that he had been held by the father by his armpits.  No mention was made in the ABE interview of having been held by his ankles. 

15. The allegations made by O were largely disputed by the parents, albeit that they accepted that there had been some more modest breach of the safety plan with the father attending the property more regularly than he should have done under that arrangement.  But the allegations made by O, in particular that involving the banister, were fully contested. 

16. The fact finding process was undertaken by Judge Sharpe and he gave a judgment on 30 October 2015.  In that judgment, insofar as there was dispute, he found the allegations that O had made proved.  In particular, he found that the safety plan had indeed been breached to a very extensive degree. 

17. There had been an incident at the family home in the early hours of 12 April 2016.  The question arose as to whether the father had been present in the house when the incident started or, as he asserted, he had been tucked up in bed at his brother's home and summoned to the house by the mother to come and help once the incident was underway.  The judge heard the evidence, in particular looking at the telephone records of the father, and he concluded very firmly that the father was indeed resident at the house on that night.  The judge used that finding to conclude that from at least early April the father had treated the property as his home base in wholesale contravention of the safety agreement. 

18. The judge also found that the children had each been encouraged to tell lies of the order that I have described.  It is helpful to give some detail of this.  The judge's findings as to emotional abuse, which of course is the consequence of that sort of parental behaviour, was this at paragraph 30, page B43:

"The children:

(i) have been told to lie about [the father's] presence within the home, if they tell anyone they'll be taking away.  That is a finding I make;
 
(ii) have been told to refer to [the father] as G; that is a finding.  The notion that was put forward that G was a name to avoid a discussion which might upset the children was (to be fair to all those who put it forward) utter nonsense;
 
(iii) have been told to lie about [the father] having access to a car;
 
(iv) were aware of the use of a camera to [inaudible] any professionals."

That was a reference to a camera that had been set up outside the property after the incident in April which the judge found had been used to reassure the parents that professionals were not outside the property before the father exited or entered it at any particular time. 

19. In addition, the judge found, therefore, that insofar as they had denied the events of April 2015 and the general breaches of the plan, the parents had been lying.  Other smaller specific allegations were also found.  So far as the allegation of O and the banister is concerned, the judge found that he accepted O's account.  I will return in more detail to what that phrase might mean because that is one of the two aspects that are now the subject of this appeal. 

20. Notwithstanding those findings, however, the judge did not move on at that hearing in October 2015 to make final orders.  The local authority by that time had issued an application for placement for adoption orders for all three children and it was anticipated that the October 2015 hearing would be a final hearing.  The judge to the contrary gave the parents yet another chance. 

21. He describes the motivation in his mind for making that move and what he was expecting of the parents in two or three sections of the judgment.  At paragraph 3 the judge records that at the very end of his evidence the father for the first time gave the judge cause to think that "the penny was dropping" with regard to what was now required of the father.  What was required, in short, was for the father to face up to the reality, as represented by the judge's findings, of his abusive and wholly inadequate parenting and to ask for help and to work cooperatively with the local authority so that the father might live life in a different and altogether safer way in terms of his parenting of these young and no doubt much loved children. 

22. At the conclusion of the judgment, the judge said this.  Having referred to the findings, he moved on at paragraph 37:

"I am far more interested in the results of the parents' reflections in the next two weeks than I am in relation to particular aspects of the findings sought by the Local Authority.  I am not critical of the Local Authority in that regard.  It was necessary for them to set out the factual framework, but it is the parents' approach to matters at this point in time which will have most impact upon my thinking in relation to any further applications I have to deal with. 

38.  In relation to the application before me, I am not going to either grant it or dismiss it at this point in time.  I am going to adjourn it for a period of time while I wait to see what the parents' approach is.  The parents need to understand that, like the advocates in front of me, I have been round the block a few times.  It is obvious when people suddenly start making concessions or indicating a change or come clean on matters because they think that is what needs to be said as opposed to beginning to accept (perhaps for the first time in [the father's] case) wholehearted acceptance of his increasing record of failings in relation to the children and the need to think about what needs to happen if it is to be the case that the children who still live at home stay there."

23. Prior to that, the judge had said this at paragraph 35:

"The application before me is effectively an application for an injunction to prevent the Local Authority from following through in relation to their care plan.  Notwithstanding the findings that I have made and the criticisms I have levelled, particularly in [the father], it does not follow that I am then persuaded that the only proper outcome for these three youngest children is removal from their parents."

24. So the case went off for a further period of reflection, the judge entertaining the prospect that there might be an outcome that was different from permanent removal and the granting of the placement for adoption orders.

25. When the case came back for the final occasion before the judge, and that is the occasion leading to his judgment on 11 March 2016 which is the primary target of this appeal, he found a situation which was largely unchanged.  Any chink of light indicated to the judge by the father's evidence had not led to any further illumination of a more sunny upland.  The father's stance, as the judge's judgment records, was effectively to deny that there had been any difficulty in his parenting and deny that he was a risk to his children.  He was, therefore, not in a position to co operate with any process that might alleviate that risk or change his behaviour. 

26. The judge, therefore, went on from paragraph 21 onwards to consider whether the children could nevertheless be with their mother notwithstanding the father's entrenched position.  The mother's case before the judge was that the children could be returned to her care under a care order supported by injunction orders keeping the father away from the family home unless he was permitted to attend. 

27. The judge considered that option.  He considered that it was wholly inadequate for the protection of the children because of the mother's long term collusion with the father.  Because of the history of breach of the safety plan, the judge concluded that the order would not provide protection.  Moreover, it had the potential for causing harm to the children by drawing them in once again, on his findings, to a conspiratorial and dishonest way of living in which lies were told about the father's place in the household.  Those points were drawn together in paragraph 26 in these words:

"Long term injunction orders are certainly not an option which would be conducive to the welfare of these children.  I have previously found that the children were instructed to lie about the presence of their father at the family home and to deny what they knew to be the case.  In my view, that is a relevant factor now.  These children would be likely to suffer further emotional abuse as F would wish to be with M.  M would want that to be the case.  Both would be under tremendous pressure not to disclose their actions and that would be passed on to the children, who would require constant reinforcement of the picture that needed to be painted."

The judge, therefore, ruled out the option of placement with the mother on that basis. He then went on to state his conclusion.  That is the second target of the appeal.  I therefore quote the relevant passages in full:

"28.  Having rejected the one alternative placed before me, I consider that the position has been reached where nothing else will do for these children but the making of placement orders.  Like the guardian, I do so with regret.  These children must have the opportunity to live without fear of future physical assault or emotional abuse.  That cannot be achieved in the care of their parents. 

29.  I am required to determine whether I can dispense with the consent of the parents to such orders, such consent not being offered (for which no criticism of the parents is made).  The only ground upon which I can do so is that the welfare of the children required such dispensation.  I do consider that the children's welfare requires that determination to be made.  I conclude so despite the very real difficulties which might exist for these children in maintaining their particular sub subship which has become strong and unified by reason of their enforced absence from the family home and their drawing together."

The judge went on then to make observations of matters of detail as to the care plan. 

28. Pausing there, my reading of paragraph 29 and the reference to "particular sub subship" is a reference to the fact that these three children, the subject of the proceedings, had always been together and there was a priority identified, particularly by the guardian, for the three to remain together come what may under whatever final placement arrangements were made. 

29. With those words, the case concluded and the orders were made.  The mother acting at that stage in person issued a notice of appeal.  It was a wide ranging document asserting a number of grounds.  Permission to appeal was granted by Theis J sitting as a judge of the Court of Appeal, but the permission was limited to two grounds; firstly, ground two which related to the finding of fact in relation to O's allegation that he was held over the banisters by the father and secondly, ground four which was a widely drawn ground asserting that the judge had failed to afford the required respect and approach dictated by Article 8 of the European Convention on Human Rights. 

30. The mother's case has in very recent days been taken up by solicitors and counsel on her behalf instructed through the grant of legal aid.  My Lord and I are very grateful to those who have acted with such speed to step into the case on the mother's part.  I would particularly commend Miss Sian Parry for the clarity and focus of the skeleton argument which she has prepared.  She in turn no doubt has been assisted by the fact that very late in the day Mr James Tillyard QC has been instructed to present the oral argument.  In like terms, I am grateful to Mr Tillyard for distilling the mother's case in the way that he has. 

31. Turning to the two grounds, therefore, and focussing first of all on ground two, the factual finding as to O being held over the banister, the evidence before the judge was limited.  The judge had an account from the social worker who had been to see O at the paternal family home, to which she had gone on 8 June.  Her note is wide ranging, covering a discussion with O undertaken, it seems, in the presence of at least one or more of the paternal relatives.  In the course of that, the following short quotation appears:

"O told me that on one occasion a few months ago O refused to get dressed for school and [the father] held him over the balcony/banister on the landing by his ankles."

That is all that is said. 

32. The other evidence arose from the ABE interview conducted on 3 July and is of altogether more detail.  I am not going to read the detail into this judgment.  Although criticism is made by Miss Parry and Mr Tillyard as to the police officer's early approach to this topic by a question which indicated that O had said something about the father's behaviour towards him in the family home on an earlier occasion, for my part, I do not consider that that aspect took the interview outside the perimeters of the ABE guidance. 

33. More importantly, the subsequent stages of the interview in which the banister incident is referred to by O and covering a number of the pages of the transcript is entirely unremarkable in the sense of identifying any fault on the part of the police officers.  O is very largely asked direct factual questions to clarify matters that he has already mentioned.  He is given free rein to give a narrative account of the event. 

34. It is plain that, in contrast to the social worker's note, O is describing the event as happening "last year" and questioning whether the baby, T, had even been born, which would place the event at least 18 months earlier.  That is in contrast to what was said to the social worker indicating that it was only "a few months" earlier. 

35. Secondly and more significantly, the physical description given by O on a number of occasions in the ABE interview is of being held by the father by the armpits.  No mention is made by him of being held by his ankles.  O, as the general account I have already given indicates, describes the event happening in the beginning of the family's day in the family home.  He identifies a number of family members being present, including his mother and including one of his older sisters, Z, who by then was aged 19 or 20.  Z was called to give evidence by the parents.  She asserted that no such incident had happened to her knowledge in the family home or when she was present. 

36. Again, in terms of evidence available to the judge, he had the oral evidence and written evidence of the parents, each of whom denied that anything of that sort had occurred.

37. The judge dealt with the banister allegation in fairly short terms in his judgment.  It is so short that again I am going to read it.  At paragraph 20:

"The other significant incident is that O and whether there had been an incident of inappropriate physical chastisement by the parents and in particular the banister incident.  I accept O's account.  I acknowledge the point made by Mr Richards [counsel for the father] in relation to the differences in detail in relation to O's account (dangled by ankles, dangled by the armpits).  They are significantly different and I accept that entirely. 

21.  Notwithstanding that significant difference in detail, I am prepared to accept O's account as being accurate.  He was not dangled by the ankles.  He was held over the banister by his armpits by [the father].  He did so as a form of punishment by [the father] towards O.  It will have been a very frightening experience for O. 

22.  In accepting O's evidence, I ask myself why would he:

(a) lie and invent something; and
 
(b) why would he concoct something so obviously otherwise difficult to accept? 

23.  There is no basis for O to lie about matters.  If he wanted to go and live with his dad, his mother would have let him.  She accepted that.  If he was frustrated at not having contact with father, that is surprising because he was moving forward at that point of time.  I question why O would make all that up.  Insofar as there are issues of credibility raised against O by the lack of consistency, my answer is consistency is an important but only one aspect of credibility.  The overall position as to why a person would invent things that they have is at least as powerful a indicator in this particular case."

38. The judge then goes on over the following two paragraphs to consider the young person Z's evidence.  Notwithstanding her denials that there had been any such incident, the judge concluded that she was not telling the truth and that she had been put in a very difficult position by the family by being called to give evidence to support the line being presented by the father and mother. 

39. A number of points are made by Mr Tillyard on behalf of the mother in criticism of the judge's approach.  The first is to remind the court of the need for clarity when making findings of fact.  Reference was made to the decision of this court in the case of Re: V [2015] EWCA Civ 274 in which I indicated that there was a basic requirement for "the losing party" to "know why he or she has lost on any particular point".  In that case, the judgment before the court in Re: V by the particular judge concerned was found to be not of an adequate standard because the judge had simply recorded his conclusions rather than explaining the reasons that lay behind that outcome. 

40. Criticism is made of the judge in this case on a number of bases.  First of all, there is no analysis offered by the judge as to why he prefers the account that O gave in the ABE interview as opposed to that given earlier to the social worker. 

41. Secondly, there is no analysis, it is submitted, and indeed there is not, of the ABE interview to ascertain whether or not it was a reliable process in terms of its evidential value and also to understand when the event asserted by O had taken place. 

42. Thirdly, it is said that there is no reference in the judge's judgment to the evidence to the contrary given by the father or the mother. 

43. Finally, it is said that the judge's approach at paragraph 22 in asking himself "why" O would lie was either a reversal of the burden of proof or an indication that the judge was expecting the parents to establish some motive for O to have put forward this dishonest account, as they say it is. 

44. In addition, Mr Tillyard has pointed to the social work interview which indicates that at the time that O first made the allegation he was fearful that the social worker had come to the paternal home in which he was staying in order to remove him and take him back to his mother's house.  There was, therefore, submits Mr Tillyard, some basis for understanding that a young person may make an assertion which is not true in order to protect themselves from that outcome which was feared by O at the time. 

45. In support of the judge's findings, Mr Charles Geekie QC, who did not appear below but who leads Miss Lucy Leader who did, submits that although the judge might have been more fulsome in the commentary that he gave in his judgment, the reasons given by the judge are sufficient to support the finding. 

46. Mr Geekie relies on the fact that the judge found in favour of O's overall account of the events of the months following the adjournment of the care proceedings.  In part, the parents accepted there had been breaches of the safety plan.  In this respect, Mr Geekie says the judge was entitled to rely upon O's account being proved, as it were, to be correct by that concession being made by the parents. 

47. Secondly, Mr Geekie submits that the ABE interview was properly conducted and displays a young man giving a clear and a full account of this particular incident. 

48. Thirdly, the judge was entitled to take account of the fact that this sort of behaviour mirrored findings made in the earlier proceedings. 

49. Fourthly, insofar as the young person, Z, was found by the judge to have been put in a difficult position and giving a false account, as the judge found it to be, to support the parents, this was an echo of two previous occasions where the judge had found that other relatives of the father had been put in exactly the same position and had come to court to give dishonest evidence, so Mr Geekie submits that the finding can be supported. 

50. I have difficulty with this point within the appeal because Mr Geekie is certainly right that the judge could have assisted all parties and indeed this court by giving additional commentary.  I am also troubled that the only stated reason given by the judge positively for preferring O's evidence is the response to the judge's own rhetorical questions as to why this young person would lie. 

51. But having looked at the material before the judge, in particular the transcript of the ABE interview, I consider that there was very plain evidence upon which a judge could rely that this incident had taken place.  O gives a clear account, voluntarily given with detail, to the police officer in the ABE interview.  No application was made by any party, particularly the parents, for O to come to court to give oral evidence either directly or through some form of special measures. 

52. The judge was, therefore, entitled to rely upon the ABE interview as sound evidence.  The judge says "I accept O's account" and goes on plainly to accept the ABE interview account.  Insofar as it differed from the very short note of what O said to the social worker, I consider that the judge was justified in preferring the one over the other. 

53. Also in looking at this point in the appeal, I am struck by the fact that it is just one finding within a whole range of findings that the judge made.  There is a need for proportionality to be borne in mind when looking at the fine detail of a judgment on a particularly narrow point when there is a whole range of allegations to be considered.  I have summarised already the bigger findings, as I consider them to be, that the judge made about the breaches of the safety plan and the emotional harm to the children by being forced to lie day in, day out about the father's presence in the home. 

54. Worrying though the allegation O made about being dangled over the banisters may be, it was in the context of this case but one small part of the overall picture.  I am reinforced in that view by the words that the judge used at the end of his judgment which I have already quoted which indicates a lack of concern, or prominent concern, about the individual findings as against the overall need for the parents to face up to the requirement for them to change overall in their parenting in order to have the children back in their care. 

55. Although on its face the judge's written words in the transcript of his judgment may fall short of the standard required by Re: V, in my view, that is of no great consequence.  I am satisfied that the judge was entitled to make the finding that he did.  I am unpersuaded that we should allow the appeal on ground two.

56. If I am wrong in that finding, I am certainly clear that even if this finding of fact were set aside then that would not be a reason of itself for returning the case to be reconsidered and re adjudicated upon so far as the welfare of the children is concerned by a fresh judge.  It is one small piece in an overall evidential jigsaw which has many pieces within it.  I simply would not send the matter back for rehearing even if I had held ground two was made out. 

57. Turning to ground four, the overall attack on the judge's evaluation of welfare and in particular in the context of Article 8.  Mr Tillyard and Miss Parry rightly shape their submissions in this regard by reference to the well known of authority of Re: B S [2013] EWCA Civ 1146.  That authority is now so well known that I do not intend to quote from it extensively at all. 

58. It is established from the words of the President giving the judgment of the court from paragraph 33 onwards that there are two essentials, as that word was deliberately used, in any adoption evaluation.  The first essential is for there to be proper evidence before the court indicating that the professional supplying the evidence, be they social worker or guardian or any other form of relevant professional, has undertaken a full evaluation of the options for the children and given and reasoned account of any recommendation that is made. 

59. The second essential from paragraph 41 of Re: B S onwards is for there to be an adequately reasoned judgment.  Again, in well known terms, the President summarises the case law as it then was and stresses that there needs to be "a proper balancing exercise".  In particular, reference is made to an earlier judgment of mine given in the case of Re: G [2013] EWCA Civ 965, [2013] 3 FCR 293 in which I was critical of what I termed to be the "linear approach".  Then at paragraph 44 the President says this:

"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 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."."

60. That approach was recently repeated, I am afraid by me again, in the case of Re: W [2016] EWCA Civ 793 at paragraph 68 when I indicated that what was required was:

"a full comprehensive welfare evaluation of all the relevant pros and cons."

61. The judge in the present case described his analysis in the way that I already set out, namely at paragraphs 28 and 29 of his judgment. 

62. Mr Tillyard in support of his appeal on this point makes a number of headline submissions.  Firstly, that the judge failed to carry out any analysis of the care plan or the placement for adoption option. 

63. Secondly, he failed to balance the benefits and detriments of each of the two options before the court the one against the other. 

64. Thirdly, the judge made no reference at all to section 1 of the Adoption and Children Act 2002 and in particular the need to afford paramount consideration to the children's welfare "throughout their lives".  In particular, the judge failed to refer to items (c) and (f) of the adoption welfare checklist.  In particular with respect to (f) of the welfare checklist:

"(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."

65. Mr Tillyard submits that in a case where these children have nine or ten siblings or half siblings, it was important for the judge expressly to evaluate the effect on them of being taken out of this family and moved on to adoption with the consequent loss of the live relationships that they each will have had and have with their various siblings.  That submission is given force by knowledge of the fact that the children lived fully within the family until their removal in June 2015. 

66. Finally, Mr Tillyard refers to Re: B S and in particular the passages and others to which I have made reference. 

67. Separately, he submits that the option for long term fostering of these three children as a group together was not considered by the court at all.  The choice before the judge was either rehabilitation in some way to the parents or adoption.  Mr Tillyard submits that in this case, particularly when children who are in relation to the two older children at the upper age for placement for adoption, long term foster placement was clearly viable and might be the best outcome for the children, but that was simply not evaluated by the judge. 

68. The care plan for the children was for the search for an adoptive home for all three to be undertaken for a period of 12 months, but it was contemplated that that might not be successful and that at the end of that period there might be a placement identified for the youngest, T, but not for all three together.  The care plan was that there would be a review of the situation at that stage.  Mr Tillyard submits that that was a plan with which the judge needed to engage with in his judgment and endorse. 

69. As we have seen, it was a matter over which the guardian had legitimate concerns.  She did not accede to that plan.  She recommended that if no adoptive placement could be found for all three children, then none of them should be placed for adoption.  All three should be brought up in long term foster care notwithstanding that the most adoptable, if that is an elegant phrase to use, namely T, might lose out on a single adoptive placement that might otherwise be available for her.  Again, Mr Tillyard submits that the judge just simply did not engage with that option and consider whether the care plan in that regard met the children's needs. 

70. The local authority in opposition to the appeal accept that there is a need to make submissions in support of the judge's judgment which take the court's eye away from a narrow consideration just of the two paragraphs to which I have already drawn attention. 

71. Mr Geekie submits that this judge had been involved with this case and these children over the course now of some years and in particular had delivered himself of three judgments in the course of the more recent proceedings.  He points to the first judgment in that sequence, namely that given on 11 September 2014, as being a model of structure and detailed content.  He describes the two subsequent judgments, which are in shorter form and indicate that they may have been given on an ex tempore basis, as being extensions of the original judgment and not freestanding self contained documents that have to be looked at without reference to any other matter.  Mr Geekie elegantly described the need to look at there being a number of chapters in an overall book rather than focussing on the one judgment alone. 

72. Mr Geekie submits that notwithstanding the points made by the mother, there is sufficient reasoning here.  He reminds the court that the judge had made findings against the parents both in his earlier judgment of September 2014, but also recording the criminal process which had led in December 2013 to the father pleading guilty to allegations of child cruelty with respect to the older child, J, and the mother accepting a caution in relation to neglect of the children at the same time.  Mr Geekie points to the detail of the findings that the judge had made in his September judgment, which included inappropriate chastisement of J, failure to protect her from such chastisement, neglect, emotional harm, inappropriate and frightening parenting techniques and failing to meet the children's health needs.  There were then the subsequent findings as to the father's approach to the care of J and further findings of neglect and then finally the findings that I have already made reference to in the most recent judgment.  In that overall context, Mr Geekie, therefore, relies upon a substantial body of adverse findings of significant harm and abuse to these children. 

73. Secondly, he submits that the court should judge the judge by his actions as much as the precise words that he did or did not use in the various judgments.  In making that submission, Mr Geekie points to the fact that on two separate occasions the judge adjourned making orders for the final removal of these children in order to allow the parents time to alter their approach to these matters so that the children could be looked after by them.  The first adjournment was followed by the care plan for rehabilitation which came to grief with the allegations made by O that were found to be proved.  But the judge, as I have indicated already in the quotations that I have made from his October judgment, adjourned that hearing in the hope that the "penny would drop" and the parents would approach the court in a different way. 

74. Looked at in that light, Mr Geekie submits that this was plainly a judge who knew that the proper approach in law, and as a matter of human rights law, was that the children should only be removed if nothing else would do and that it was necessary for their overall welfare.  If he had thought otherwise, he would simply have made orders of a final nature at earlier stages. 

75. Mr Geekie accepts that he is in greater difficulty if focus is brought to the bear on the words used by the judge in the final judgment itself.  He did not respond to the invitation of this court to justify paragraph 28 of the judge's judgment as being other than a "linear" description of the judicial thought process. 

76. Separately, Mr Geekie submits that the judge cannot be criticised for failing to consider long term fostering as a separate option.  It is common ground that the case was simply not put to the court by any of the parties on that basis.  The choice was a simple binary choice between rehabilitation to the family on some basis or adoption.  Mr Geekie submits that this experienced judge should be given full credit for his overall approach to the case which shines out in the way in which he has case managed the proceedings and that he can be taken to have evaluated the final outcome in a way that is entirely compatible with the statute and the case law. 

77. The position of the guardian before this court is to oppose the appeal and adopt in large measure the submissions made by Mr Geekie on behalf of the local authority, but we are grateful to Mr Boothroyd for his freestanding skeleton argument made at an earlier stage. 

78. Drawing matters together at the conclusion of this judgment, I contemplate with a heavy heart that the outcome of the appeal being successful is that the welfare determination  would have to be reheard by a fresh tribunal.  But despite that heavy heart and the need to contemplate yet further delay for these children, I am afraid I conclude that the judgment simply cannot be upheld as being an adequate analysis of the options for these children in this case. 

79. I do so for the following reasons.  Looking at it in as many ways as is possible, in my view, it is simply not open to this court to read paragraph 28 of the judge's judgment as being anything other than the description of a linear approach.  The judge spends the first 27 paragraphs of the judgment analysing the case put forward by the parents which he then rejects.  He then starts paragraph 28 with the following words:

"Having rejected the one alternative placed before me, I consider that the position has been reached where nothing else will do for these children but the making of placement orders."

80. There is no attempt by the judge to identify the pros and cons of the adoption option or to ask himself whether the circumstances for these children if they were to remain in the family despite the lack of any movement on the part of the father and despite the risk of further significant harm that that would indicate, that it was nevertheless necessary for them to move for adoption. 

81. This case was not one that involved the potential for harm to children which was at the very highest end of the spectrum.  That is why, no doubt, the judge was persuaded to adjourn the case on two occasions.  What was needed, therefore, was a more sophisticated evaluation of whether the potential for harm for the children was such that it was now necessary for them to move on for adoption. 

82. Adoption is a status which carries many benefits with it, but it does so at a price.  In short terms, the price includes the loss of existing relationships.  In the present case where these children had live and active relationships with a range of siblings, it was necessary for the judge to contemplate the effect on them of losing those relationships.  He did not to so. 

83. Further, it was necessary for the judge to engage with the thought process that the guardian had undertaken in deciding whether there should be a priority given to the need to keep all three of these children together as one group even if that meant sacrificing the possibility of an adoptive placement for any of them.  The judge endorsed the local authority care plan and in doing so he rejected the preference for the latter outcome that I have described put forward by the guardian.  Again, in my view, the judge should have engaged with that aspect of the case. 

84. In short, there was a need for the judge not only to undertake, as he may have done in his own mind, but to show that he has undertaken a full comprehensive welfare evaluation of the relevant pros and cons.  Despite understanding the submissions made by the local authority that we should judge the judge by his actions as much as his words, the time had to come in one judgment or another for the judge to descend to some greater level of detail than he did and explain why, given the history of this case, the time had come when it was necessary for the children to move on to adoption. 

85. Insofar as the judge's failure to mention long term fostering as a separate freestanding option is concerned, I take on board Mr Geekie's submission that that simply was not put before the court by any party.  Mr Tillyard submits that it is so obvious that it should be one that the judge grappled with himself.  I do not go so far as to say that that was something that the judge should have done, but the various options for the children, including long term fostering which was put forward as part of the guardian's analysis, should have been considered amongst the range of the overall evaluation that the judge undertook rather than a freestanding option, but simply looking at the other outcomes that might be contemplated if the adoption plan failed. 

86. For all of the reasons that I have given, I consider that on this occasion this highly experienced judge failed to afford adequate time and space in his judgment to explain the welfare analysis that he had undertaken.  As I have indicated, my finding is that the description that he gives is one of a linear evaluation to the extent that his conclusion cannot be upheld.  It is, therefore, necessary, if my Lord agrees, for the appeal to be allowed on ground four and for the matter to be remitted for rehearing before a different judge.

87. LORD JUSTICE LAWS:  For the reasons given by my Lord McFarlane LJ, I agree that that the appeal on ground two should be dismissed and that on ground four allowed.  I also agree that the relief proposed by him should be granted.