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Re R (A Child) [2021] EWCA Civ 1019

Successful appeal against the rejection of the Local Authority’s care plan for adoption. Proceedings were remitted for re-hearing due to the Recorder’s failure to undertake the Re G balancing exercise


These were care proceedings concerning the mother's youngest child, A. Proceedings in relation to seven older siblings had concluded in November 2019, with a District Judge approving plans for long-term foster-care (the oldest five), and making care and placement orders (the youngest two). The background was of domestic abuse and chronic extensive neglect. Proceedings in relation to A began in December 2019. The evidence included a PAMS assessment which recommended a bespoke teaching programme, and an assessment by an ISW who had subsequently carried out that work. The latter concluded that the mother had little insight into the role her parenting played in the removal of her older children, that she would need intensive input from services if A were to be placed in her care, and that she would be unlikely to work constructively with professionals. The Guardian considered that there were gaps in the evidence and proposed an adjournment to enable the Local Authority to set out the support that could be put in place to enable A to be cared for by her mother. For the Guardian, this was a 'finely balanced' case.

The Recorder gave an ex tempore judgment, concluding that the mother would be able to parent A with appropriate support, and that a support package along the lines of the one outlined by the Guardian in the witness box would best meet A's needs.

The Court of Appeal remitted the case for a re-hearing for the following reasons:

• The Recorder had set out his conclusion rejecting adoption before considering the welfare checklist and without having balanced the two competing options (namely, the return to the mother's care or the making of care and placement orders). Having rejected the plan for adoption, his welfare analysis was limited to merely considering whether A could be placed with her mother. Moreover, that welfare analysis did not include an analysis of the risk that the proposed rehabilitation to the mother might break down and the potential consequences of that for A.

• It was not simply a case where the Judge had informed the parties of his decision (ie rejecting adoption) and then proceeded to set out his reasons. He had failed to undertake a comprehensive welfare analysis of the pros and cons of the competing options. Particular care needs to be taken to carry out a comprehensive evaluation in cases such as this one which are described by the Guardian as 'finely balanced.'

• The test 'nothing else will do' was misapplied as a short-cut test in the way identified by McFarlane LJ in Re W [2017] 2 FLR 31.

• In any event, having found that a package of support was necessary to enable the mother to safely care for A, the Recorder was unable to undertake the required balancing exercise in circumstances where there was a lack of clarity as to what would be available.

Case summary by Abigail Bond, Barrister, St John's Chambers

For full case, please see BAILII