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Re B (Adequacy of Reasons) [2022] EWCA Civ 407

The Court of Appeal (McFarlane P, LJJs Peter Jackson and Nicola Davies) allowed an appeal against care and placement for adoption orders where the judge had failed to engage properly with the oral evidence and had conducted a linear analysis, discounting the parents before going on to consider the application for a placement order.

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Background (§1-5)

The care proceedings concerned E, the youngest of the mother's five children. Her first child, C, was the product of an abusive relationship. The parents (M and F) met in 2009 and had four further children together. Findings were made in 2013 that C had been assaulted at the age of six, causing bruising, by either M, F or a Mr K. C and the parents' first two children were found to be suffering/at risk of suffering neglect and physical and emotional harm and were all placed for adoption. The parents' fourth child, born subsequently, was also removed and placed for adoption following proceedings in 2016 when the parents' situation was considered essentially the same and they had not accepted the reasons for the removal of the older children.

After E's birth in August 2020, care proceedings were brought based on the previous findings, F's cannabis use and impulsivity and M's dependant personality, together with their failure to accept the previous concerns. On the guardian's recommendation there was a residential assessment, which concluded in December 2020 that the parents had not been honest about their involvement with Mr K and that despite substantial support they did not recognise their poor parenting skills, or take responsibility for their behaviour, and therefore they could not keep K safe.

A psychologist assessed the parents and found that there were ongoing risks. They would need six months' therapeutic input and there was no guarantee of success. They needed to show evidence of sustained change.

In January 2021 E was placed in foster care pending the final hearing.

The hearing (§6-8)

The final hearing took place in November 2021 before Recorder Sanghera. The psychologist and authors of the residential assessment gave evidence, having had no involvement with the family since December 2020. The psychologist accepted that the parents had made some changes and said that if the court found that they had made the necessary, sustained changes he would support further assessment.

The appeal (§9-11)

The parents argued that the judge did not sufficiently analyse the evidence and that his welfare analysis was legally wrong in that he conducted a linear analysis and discounted the parents on the basis of the CA 1989 welfare checklist before then considering the option of adoption by reference to the ACA 2002 expanded checklist.

Threshold (§12-18)

The CA was concerned that the judgment did not sufficiently identify the basis on which the s31 threshold was crossed.

Discussion of the judgment (§19-51)

Failure to engage with the oral evidence (§19-32)

• The judge relied very heavily on the written evidence of the psychologist although he did set out some aspects of his oral evidence;

• He barely mentioned the oral evidence of the residential assessors;

• The evidence of the social worker and guardian are described in a single paragraph for each;

• There is little mention of the parents' oral evidence or the general case put forward on their behalf, which is summarised in a single sentence;

• The various changes which the parents relied on are mentioned briefly in the account of the psychologist's evidence but are not factored into the judge's analysis even though the social worker and guardian made some significant concessions in respect of those changes;

• In response to a request by counsel for clarification following judgment the judge responded that he had covered all matters that were material to his decision.

• The issue of whether the parents had made sufficient change, such that the risks to E had diminished, was the key issue yet barely engaged with in the judgment.

Accordingly the judge's analysis was compromised and his risk assessment was undermined by failure to take into account positive changes as well as negative factors.

Should the welfare decision have been taken under CA 1989 or ACA 2002?(§33-42)

• The court had two realistic options before it, either rehabilitation of E with her parents or adoption.

• The judge should have analysed both options with reference to the ACA 2002 checklist.

• Even if the judge had been right to start by analysing the pros and cons of returning E to the parents under the CA 1989 (which he wasn't), he should still have had regard to the LA's permanence plan, which was adoption.

• Where there is an application for a placement order, that becomes the primary application and it is both unnecessary and wrong to consider the care application on its own before then turning to the placement order application.

• It is right however, when a court concludes that a child should be placed for adoption, to make a care order as well as the placement order, albeit the care order will be "dormant" unless the placement order is subsequently revoked.

A linear analysis?(§43-51)

• The judge considered the option of placing E with the parents and discounted it before then moving on to the placement application and considering adoption as against a "straw man" option of long term fostering.

• He was wrong, having identified placement with the parents as a realistic option, to make a preliminary ruling which ruled it out before considering others.

• It was not open to the court to prune the options in that way and to avoid a holistic evaluation of all the realistic options.

Conclusion

The case was sent back to the Family Court for rehearing on the basis that the outcome was unjust because of a serious procedural irregularity; no comment was made about the merits or demerits of the local authority's applications. At §59 Lord Justice Peter Jackson, having emphasised the importance of every judgment having an appropriate structure, set out the requirements of every good judgment:

(1) state the background facts

(2) identify the issue(s) that must be decided

(3) articulate the legal test(s) that must be applied

(4) note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned

(5) record each party's core case on the issues

(6) make findings of fact about any disputed matters that are significant for the decision

(7) evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties

(8) give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes.

Peter Jackson LJ went on to stress that the evaluation and explanation, while coming last, are the critical elements of any judgment.

In cases where a placement order is sought, the following sequence of questions must be addressed:

(1) Are the threshold conditions under s.31(2) CA 1989 satisfied, and if so, in what specific respects?

(2) What are the realistic options for the child's future?

(3) Evaluating the whole of the evidence by reference to the checklist under s.1(4) ACA 2002, what are the advantages and disadvantages of each realistic option?

(4) Treating the child's welfare as paramount and comparing each option against the other, is the court driven to the conclusion that a placement order is the only order that can meet the child's immediate and lifelong welfare needs?

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII