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Re D (A Child – Placement Order) [2022] EWCA Civ 896

Appeal against placement order allowed following a deficient analysis at first instance.

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Following a lengthy final hearing HHJ Greensmith made an order placing a three year old child for adoption rather than placing him with his grandmother. The question on appeal was whether that decision was reached after rigorous evaluation and comparison of options or whether the process was deficient.

The Court of Appeal allowed the appeal with Jackson LJ providing a succinct judgment and remitting the grandmother's claim for urgent rehearing. The judge had not taken into account more positive evidence or addressed the question of reduction and mitigation of risk. No reference at all was made to the opinion of a second Independent Social Worker. Importantly, the judge had "telescoped" the process. He ruled out the grandmother because he found she would be incapable of protecting the child from the risk of harm if the child was caught up in a parental argument. The judge had treated this as if it was the ultimate question and that any risk of parental involvement would be fatal. The judge had failed to ask a series of important questions around actual likelihood or management of risk. There was therefore an incomplete evaluation of the grandmother's position and, because he had ruled out the option of the Grandmother, he did not go on to compare it meaningfully with the alternative plan of adoption.

As emphasised in the recent Supreme Court decision of H-W (Children) [2022] UKSC 17, a decision leading to adoption requires rigorous evaluation and comparison of all the realistic possibilities for a child's future in light of any factual findings. The court must evaluate the family placement, assess the nature and likelihood of the harm that the child would be likely to suffer in it, the consequences of the harm arising, and the possibilities for reducing the risks of harm or for mitigating its effects. There must then follow a comparison of advantages and disadvantages of that family placement with the advantages and disadvantages of adoption (and of any other realistic placement outcome short of adoption). Only through this process can the court conclude that adoption is the only outcome that can provide for the child's lifelong welfare – that it's necessary and proportionate.

Case summary by Hannah Gomersall, Barrister, Coram Chambers

For full case, please see BAILII