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W (A Child), Re [2019] EWCA Civ 1966

An appeal by a great-aunt against care and placement orders made in May 2019 concerning a two year old boy. Appeal allowed.

The Court of Appeal unanimously allowed an appeal against care and placement orders on the basis of an inadequately reasoned judgment. The trial judgment itself amounted to eight pages and did not include much background, a record of the evidence, and the lack of mention of the local authority's change of position at a point during the hearing. King LJ, giving the leading judgment, set aside the orders, leaving the child in s.20 accommodation until further steps were taken by the local authority.

The mother accepted she could not care, and the only realistic alternative was a great-aunt. She was not a party for some of the proceedings (despite an application), and remained unrepresented throughout. An ISW assessment was followed by two addendums. The case was clearly finely balanced but the local authority's application for care and placement orders was supported by the guardian.

The trial judge was criticised for the lack of analysis of the key factors in the welfare checklist, specifically relating to adoption. There was a lack of analysis as to why the judge appeared to come to conclusions different to that which seemed to arise from the ISW's written evidence, and no analysis of any oral evidence given. This was one part of the inadequate analysis of the positive aspects of the aunt as a potential carer.

There was also a lack of real analysis of risk. The principles that generally apply to threshold can also be applied to welfare. It is not enough simply to say there is a risk – the risk itself, and its impact on the outcome, must be carefully evaluated.

A reminder was given to the local authority to be even-handed in the presentation of their case. The great-aunt's contact had been supervised by a person named in the judgment as 'DJ'. 'DJ' had produced extensive contact notes, a full record of which was not available to the judge. The summary provided by the local authority of the contact notes was not sufficient. King LJ was also of the view that DJ should have been called to give evidence, as it was clear that the person was not just supervising but was assessing contact. To say that the great-aunt had not required DJ to be called was insufficient in a case where she was unrepresented and where DJ played a key role at a crucial stage of the proceedings.

King LJ also made comments on the use of recitals in orders, stating that it was unhelpful to recite comments of the judge which related to an exploration of the merits of an application. This is part of a general backlash against the use of extensive recitals in public law orders.

The judgment is however generally sympathetic to the judge, noting the hard work those hearing these type of cases must do, and the difficulties of dealing with a case when they have had no prior experience or involvement.

Summary by Rebecca Davies, barrister, Field Court Chambers

You can read the full judgment of W (A Child), Re [2019] EWCA Civ 1966 on BAILII