What is an ‘unrealistic option’ in the Re B-S context?

Ruth Cabeza analyses the issues raised by use of the phrase 'not a realistic option' in child care cases.

There have been a number of cases in the Court of Appeal where the use of the phrase ‘not a realistic option’ in a judgment given at the final hearing of a care case, has led to permission to appeal a decision being granted. It is suggested that this phrase only should be used with extreme caution, either by advocates or by judges. The use of this phrase in a judgment suggests that an option has been discarded prior to the point of the holistic evaluation of all the ‘realistic options’ for a child. If the Court of Appeal is satisfied at a permission stage, that there is a reasonable prospect of the appellant establishing that the Judge at first instance has failed to evaluate a ‘realistic option’, then the case is likely to be allowed to proceed to a full appeal.

This is because the appeal judge is likely to want to determine whether or not the first instance judge conducted a careful and holistic analysis of all the realistic options for the child, comparing the risks and benefits of each, before concluding which of them most appropriately met the welfare needs of the child, in the light of the relevant welfare considerations. This kind of detailed review of the first instance judgment, alongside any evidence relied upon by the Judge at first instance, cannot be properly explored at the permission stage. Accordingly, even if it turns out that the option described as unrealistic by the first instance Judge, was indeed unrealistic, public funding will have been spent, and, more importantly, there will have been additional delay to the permanent placement of the child, arising out the appeal process.

It is not suggested that every conceivable option for a child needs to be given careful consideration. For example, a placement with a family member, who has been the subject of a negative viability assessment, and has not sought to challenge that decision at any stage, including at the final hearing, is not a realistic option, and may not even need to be mentioned in a final hearing judgment.

However, a placement option that has been actively explored within the proceedings, and advanced by at least one party as being a realistic option for the child’s long term care (even if not being actively advanced at the final hearing by any party) needs to be treated with care, in order to avoid the risk of an appeal being brought against a care or placement order. Accordingly, it is suggested that a judge wishing to discard such an option for the child on the basis that it is an ‘unrealistic option’  – whether advanced as the preferred option by a party or not – should carefully explain the benefits and risks of the potential placement and before concluding that it is an unrealistic option confirm that it finds that either 1) the child would be likely to suffer significant harm in that placement; or 2) the court has no power to make orders which would bring about the placement. Furthermore, if on the evidence, the court is satisfied that the option is unrealistic on the basis of the criteria of 1) or 2) above, it would be sensible to explain, with some detail, the evidence relied upon in reaching that finding, before asserting that the option is ‘unrealistic’.  A failure to set this out clearly, may well cause an appellate to court to conclude that the option may have been realistic (in which case permission is likely to be granted) and further if at the full appeal the court is not satisfied that the Judge has adequately explained why a reason was unrealistic, then if that option did not enter the stage when all realistic placement options are evaluated, side by side in a holistic manner, there is a likelihood that the appeal will be allowed, and the case remitted for a fresh hearing of the disposal element of the case.

I have recently been involved in two Court of Appeal hearings where the use of the phrase ‘unrealistic option’ in the first instance judgment, led to permission to appeal against care and placement orders being granted.  In the matter of Re Y (Children) [2016] EWCA Civ 1091  the appeal against the placement orders was ultimately allowed on the basis that the Judge had failed to given any explanation as to why long term foster care was an unrealistic option when it had been recorded at as a realistic option for the child in a case management order shortly before the final hearing. The fact that this option was not advanced by any party at the final hearing, and both the local authority and children’s guardian’s evidence had explained why it was unrealistic, did not prevent the appeal being allowed. The case was remitted for rehearing of whether or not long term foster care was in the children’s best interests, and, ultimately, when the case came before Keehan J in January 2017, (A local authority v J and Y [2017] EWHC 10 (Fam)) the court was satisfied that, if within a reasonable period an appropriate placement for both children to be placed for adoption together could be found, adoption was indeed the option which most appropriately met the needs of those two children and a placement order was granted.

More recently, the mother of a year old baby was given permission to appeal care and placement orders, following a very detailed judgment which set out why various options for the baby’s long term care, and in particular the placement of the mother in a Shared Lives placement, were unrealistic and the only skittle left standing having ruled out the options, was adoption. However, when the Court of Appeal heard the full appeal, in which they scrutinised that judgment, they were satisfied that the Judge’s detailed exposition of how she reached that conclusion, adequately provided a fully reasoned basis for her conclusions. Accordingly that appeal was dismissed. However this was cold comfort to the baby whose case had taken over a year to come to court at first instance and who had lost a further 3 months waiting for the appeal to be determined. The extempore Judgment in that case was delivered by McFarlane LJ on 24 February 2017, has not yet been transcribed and published on Bailii, but will hopefully be available in the near future.

So, even if a placement option is plainly unrealistic, advocates and judges should be wary of summarily dismissing an option as unrealistic at a final hearing. Judges should be encouraged to explain in detail why a placement which had until recently been considered viable by at least one party, and/or was being advanced as the most appropriate option at the final hearing by at least one party, is on the evidence before them, ‘an unrealistic option’ which does not enter the holistic 360-degree evaluation required by re BS.  If there is any doubt, the safe option would be to include it in that evaluative process. A short cut of maybe 10 mins of judgment can easily lead to a huge amount of time be expended later. All advocates, but perhaps particularly local authority advocates, need to ensure that the judgment is safe from appeal. Succeeding at first instance is not enough. Making sure the judgment is bullet is proof is also necessary.  Ensuring that in closing submissions, a judge is reminded of the dangers inherent in the use of the term ‘unrealistic option’, is a valuable prophylactic in any event.

Ruth Cabeza is a barrister at Field Court Chambers. She did not appear at first instance on the Re Y case. This article first appeared on the set’s website here.