Children’s law update

Michael Jones KC analyses the latest children’s law cases of interest to practitioners.

The Court of Appeal has been steadily churning out some interesting judgments over the weeks of Spring and early Summer, the most choice of which I will endeavour to summarise below in order to give you, the readers, the maximum amount of information, with the minimum effort, i.e. obviating the need for you to read the full judgments (sort of - there is never any substitute for reading a good judgment in full).

I’m going to start with Re M (A Child: Leave To Oppose Adoption) [2023] EWCA Civ 404, with the lead judgment given by Peter Jackson LJ (regular readers will note the unusual omission of any PJLJ judgments in my Easter update). This was a successful appeal against the decision of a Recorder granting a mother leave to oppose an adoption order. The reason it is of particular note, is that aside from re-stating the law in this area, which is well established, it address the dicta of Mostyn J in Prospective Adopters v SA (Father) (Rev 1) [2015] EWHC 327 (Fam) and Prospective Adopters v the London Borough of Tower Hamlets [2020] EWFC 26. In order for leave to be granted to oppose an adoption order under s.47 of the 2002 Act, a parent must cross a two stage hurdle; they must establish a change of circumstances since the placement order was made, and then, if they are able to do that, they must then persuade the Court that it is in the child’s welfare interests for leave to oppose to be granted (i.e. should the Court revisit the plan of adoption and is this in the child’s welfare interests). What Mostyn J said in SA, was;

"Obviously the words "a change in circumstances" are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order."

Whilst in the LB Tower Hamlets case, he added:

"Obviously, changes that were clearly either foreseen or which were foreseeable at the time of the original order cannot qualify. Otherwise, the provision would be just another variation power."

He also stated the following in SA;

"Re P did not however address the question which I have identified namely whether the change in circumstances should be unexpected. In my judgment, in the absence of a specific reference by Parliament to actually foreseen changes (in contrast to section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970) the changes in question must be unexpected and must exclusively attach to the basic facts and expectations which underpinned the initial order."

Peter Jackson LJ rejected that approach;

‘There are several reasons for rejecting this approach:

(1) The language of the sub-section is simple and there is no reason to gloss it.

(2) In Re SA at [14] Mostyn J said that he intended to look at the provisions from first principles, but there was no occasion for him to do that. The issue of whether change must be unexpected, unforeseen or unforeseeable (and the concepts are not the same) did not arise in Re SA or in Tower Hamlets. The law had been recently and authoritatively stated in this court's decisions in Re P and in Re B-S.

(3) The proposition was inspired by an analysis of statutory provisions relating to the court's power to vary maintenance agreements: Re SA at [17- 19]. Those provisions are irrelevant to legislation about the adoption of children. They concern changes of circumstance that occur following bargains made between the parties. The Act concerns placement orders imposed by the court for reasons of child welfare. The proper approach to construction will in each case be conditioned by the very different statutory purposes of these unrelated pieces of legislation.

(4) In the absence of a relevant contrary indication, the only conclusion that can reliably be drawn from the fact that a statute does not say whether a change of circumstances is foreseen or unforeseen is that it can be either. There is also a false logic to the argument that, because Parliament has amended one statute to provide that a change of circumstances may include a foreseen change of circumstances, every statute that does not do the same must mean the opposite.

(5) In the context of the Act, there is no reason whatever to raise the bar by burdening parents with the additional obligation of showing that the changes they rely upon were unexpected or, put another way, to deprive them of the opportunity to rely on changes that were foreseen or foreseeable. As Lord Justice Holroyde observed during argument, that would be very unfair. Expectations are not binary, foresight cannot be calibrated, and there may be a number of future possibilities of varying degrees of likelihood. For example, a parent may say at the placement order hearing that he will achieve sobriety or become drug-free, but the court may not be convinced. If, by the time of the adoption proceedings, he is sober, that cannot sensibly be regarded either as unexpected, unforeseen or unforeseeable simply because it was uncertain or because the alternative was more likely. Why should he be worse off for having achieved something the court foresaw as possible but did not consider probable?

(6) To introduce a requirement relating to expectations would be unworkable and add needless complication to what is no more than a threshold test. When it makes a placement order, the court reaches a conclusion about the need for adoption. It cannot state every expectation it may have for the future, and it cannot know when the adoption application will be made. Trying to decide what was or was not expected, foreseen or foreseeable could only distract from the simple question of whether there has been a change between the facts that existed then and the facts that exist now.

For these reasons, the proposition in Re SA is wrong and should not be followed.’

So, once again, the Court of Appeal has confirmed Mostyn J has erred, albeit, I have to admit, whilst I agree with Peter Jackson LJ’s reasoning, I do enjoy Mostyn J’s judgments, there is a really decent recent one of his lordship’s, EBK v DLO (Rev1) [2023] EWHC 1074 (Fam), which I recommend reading. Also notable is the fact that Peter Jackson LJ gives a massive shout out to Mostyn J at the conclusion of his Nicholas Wall Memorial Lecture; so it is clear there is a mutual respect there between these titans of family law, despite the intellectual jousting which takes place in the Court of Appeal judgments (which is always fun to read for the committed ‘law nerds’ amongst us, i.e. me).

In essence, the judgment in Re M confirms the two stage test and the need to avoid placing any ‘gloss’ upon it or including or adding on any additional wording to it.

Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465 is an interesting judgment. It relates to an appeal against a successful application to re-open previous findings of fact. It confirms the 3 stage test that has to be applied in such cases, set out in the line of authorities culminating in Re CTD (A Child: Rehearing) [2020] EWCA Civ 1316. In relation to the first stage: (i) the Court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other; (ii) it should weigh up all relevant matters, including the need to put scarce resources to good use, the effect of delay on the child, the importance of establishing the truth, the nature and significance of the findings themselves and the quality and relevance of the further evidence; and (iii) above all, the Court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.

What is interesting about this case for me, is the set of facts present. In this case, the father had been acquitted in the Crown Court of sexually abusing one of the children, his step-daughter, A. The Court had discharged A as a party to the original care proceedings and the trial judge made threshold findings which did not relate to sexual abuse. The application to re-open the findings was made by the local authority; it sought to re-open the ‘non-fact finding’ in relation to A’s allegations against the father (i.e. it sought to prosecute A’s allegations). Peter Jackson LJ noted that ‘It makes no difference in principle that it was a non-finding as opposed to an inculpatory finding or an exoneration’.

The judge at first instance permitted the application to re-open the findings. The judge accepted that the fact that A now wished to give oral evidence (she had not done originally) would not in itself constitute ‘new evidence’ necessary to permit a re-opening. The judge also noted her concerns at the fact that A had previously been discharged as a party prior to the threshold hearing. The judge concluded that taken in totality, the facts present did necessitate a reopening of the previous ‘non-findings’ because;

‘reopening will allow an unhindered consideration of the alternative-basis threshold with a view to achieving a reliable global factual matrix for the children. This course of action brings similar degrees of advantage and risk to both adult protagonists and will provide a full judicial consideration of their competing cases. A would be afforded representation and participation directions and could present her full case including (i) advancing her own cross examination of F2 and M; (ii) taking cross examination herself and (iii) advancing submissions. This would not be restricted to her sexual allegations: A has standing in relation to the other issues the LA wishes to litigate as a whole alternative-basis Threshold. Moreover, A's own welfare is engaged as a subject child, alongside that of her sibling and half siblings."

The Court of Appeal refused the father’s appeal against the judge’s decision to re-open the ‘nonfact finding’, with Peter Jackson LJ concluding that;

‘In my view, the judge's response to this difficult decision cannot be faulted. She identified the law correctly and analysed the application with scrupulous care. She did not omit any relevant matter or take account of any irrelevant matter, and she reached a principled decision that was plainly open to her.’

Ground 2 contends that the judge was wrong to treat the circumstances of A's discharge as a party to the previous proceedings as relevant. Mr Tughan rightly did not press the argument in such absolute terms, instead submitting that the judge attached too much weight to this factor, but I do not accept that. As the judge said, the court was obliged to gain a clear understanding of the previous proceedings. The degree to which A had participated in them was undoubtedly a relevant matter, however it had come about, as was the reason why no appeal was brought at the time. The weight to be given to them was a matter for her, and it was not submitted that her approach fell outside the range of reasonable assessments.

The position is the same with ground 3. The judge was similarly obliged to gain an understanding of the nature of A's evidence at the criminal trial and was entitled to take a view of the nature of the cross-examination when deciding the application that was before her.

Ground 4 argues that even if A's allegation was true it would not necessarily be probative of D's allegation, and accordingly it would not be bound to affect the outcome one way or another. Accordingly, solid grounds for reopening have not been shown. Mr Tughan rightly accepts that, were the matter being heard for the first time, each allegation might ultimately be capable of supporting the other. That evidently does not mean that reopening must occur, but it is a feature that the judge was entitled to weigh up, and I find her treatment of this issue at paragraph 71 to be convincing. It would of course be theoretically possible to determine D's allegation in isolation, but doing so would lead to considerable difficulty in assessing the alternative case against M, which concerns both D and A; further, the truth or falsity of both allegations are capable of being mutually probative.

Ground 5 now leads to a more limited argument than had appeared likely when permission was granted. The judge did not follow Re RL (discussed below) and if it was ever suggested that she should have done, that argument has now been disavowed. Instead the issue is whether the new evidence or information must relate exclusively to the original finding if a reopening is to occur.

‘It is true that in the recent authorities the request to reopen arose from further information that related directly to the original finding. In that respect the present case is different. However, that reflects the variety of factual configurations from which a reopening request may arise, and it is not a reason to confine the scope of the jurisdiction. The judge was aware of the risk of opening the floodgates to inappropriate applications, but she rightly directed herself at paragraph 72 that the potential features to be taken into account are not exhaustive, nor, I would add, restrictive in the way that is now proposed. Her self-direction at the foot of that paragraph was in keeping with the guidance given in the authorities and was appropriate to the particular situation in the present case.’

The case interests me because it involved reopening of a ‘non-finding’ in circumstances where the complainant child had now expressed a willingness to give oral evidence; an unusual set of facts.

The Court of Appeal then went on to correct the approach of Mostyn J in RL v Nottinghamshire County Council (yes, Mostyn J gets taken to task again in a case where the appeal in question isn’t even against one of his judgments!). In RL, Mostyn J had proposed a narrower test for reopening findings, as set out at paragraphs 42 onwards in his judgment. The Court of Appeal makes clear that the approach in RL should not be followed for two main reasons;

‘A judge's main responsibility is to decide the case in hand. The High Court and the appeal courts may also give rulings on matters of law to ensure that the law is correct, accessible to litigants and the public, and expressed in a way that is helpful to trial judges. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW [2015] EWCA Civ 1054. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.

More fundamentally, it is a misconception that the time-tested approach to reopening findings of fact in children's cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. There is rightly considerable consistency in the response of all courts to attempts to relitigate (see for example Re W at [28], cited at paragraph 9 above) but formulations cannot be cloned from one context to another without regard to their effect. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. In order to achieve just, welfarebased outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context. The formulation in Re RL originates in the decision in Phosphate Sewage Co Ltd v Molleson, which arose from efforts to relitigate a claim in bankruptcy, but Re RL and the present case required the court to evaluate the very different considerations that arise in cases of child welfare. The applicable law is clear and there is no need to unsettle it for the sake of theoretical conformity by transposing a test devised in a different legal context.’

This case has therefore confirmed beyond any doubt, the remit of the test that must be applied in applications to re-open findings of fact (or non-findings of fact).

My next case of interest is Re D (Costs of Appeal: Application to Vary or Revoke Order) [2023] EWHC 1244 (Fam). This is a Cobb J judgment in a private law case where the father had previously been exculpated following a fact finding exercise in which Cobb J had made no findings of sexual abuse against him. Cobb J found that;

‘The mother allowed her pre-existing feelings of hostility towards the father, playing out against a backdrop of difficult 'life stresses', to influence and determine to an ultimately insupportable degree her assessment, and reporting, of what her daughter had said to her. Very soon she was caught up in what she genuinely perceived was an 'horrendous' (her word) situation in which professionals were actively validating her concerns, and advising her to protect her daughter from abuse.’

Francis J then considered the issue of costs and ordered that the mother should pay one half of the father’s legal costs, assessed at £76,000. The mother then applied for an order that the costs order be rescinded or substantially varied. The mother initially purported to bring the application under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 ('the 1984 Act'), however it was accepted before Cobb J that the statutory basis on which her application was originally based was erroneous given that the costs order had been made in the High Court exercising its appellate jurisdiction in relation to a private law matter. The hearing proceeded before Cobb J on the basis that the Court could exercise its power under rule 4.1(6) of the Family Procedure Rules 2010 ('FPR 2010') to ‘vary or revoke’ this costs order if it was considered appropriate. The mother effectively argued that she was no impecunious and unable to pay the said share of the father’s costs.

In terms of the legal framework, Cobb J’s starting point was s. 17 of the Senior Courts Act 1981 ('SCA 1981'); this provides as follows:

17.— Applications for new trial.

(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.

(2) As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.

Cobb J was ultimately satisfied that the Court did have jurisdiction to vary/revoke a costs order, under Rule 4.16(6) FPR 2010, the Family Procedure Rules 2010 ('FPR 2010'), which provides that:

"A power of the court under these rules to make an order includes a power to vary or revoke the order."

This rule is in exactly the same terms as rule 3.1(7) of the CPR. Cobb J provided an overview of the authorities in this area and noted the contrasting approaches of MacDonald J and Mostyn J, to the issue. He concluded as follows;

‘So, I turn to the current application. For the reasons set out above, it is my view that rule 4.1(6) FPR 2010 can indeed provide the mother with a route to a remedy; I am prepared to accept that rule 4.1(6) FPR 2010 does give the court the power to vary or revoke a final order. I regard it as entirely proper to draw on the caselaw which has considered rule 3.1(7) CPR, where judges have reached that specific conclusion, although I accept that the circumstances in which the power can be used in relation to a final order is likely to be limited; a discrete, self-contained order such as a costs order is one good example. In this regard, and not without some hesitation, I accept the views and reasoning of Mostyn J in TF v PJ in preference for the more circumspect approach taken by MacDonald J in N v J.’

(Note that a judge is agreeing with Mostyn J here). Cobb J found that the appropriate test to apply on an application under r.4.1(6) FPR 2010 is as follows;

i) The welfare of D is relevant but not the paramount consideration on this application;

ii) Although the court has a reasonably broad discretion to vary or revoke an order, that discretion is likely to be exercised only where:

a) there has been fraud;

b) there has been a material change of circumstances since the order was made;

c) the facts on which the original decision was made have been misstated (innocently or otherwise); this would include a situation where there has been material non-disclosure; and/or

d) there had been a manifest mistake on the part of the judge in formulating the order

iii) In exercising that discretion, a court should, in my judgment, have clear regard to the following principles:

a) The court's power under section 31F(6) of the 1984 Act (and I suggest, by analogy, rule 4.1(6) FPR 2010) is not "unbounded": per Baroness Hale in Sharland v Sharland [2015] UKSC 60 at [41]; it should be subject to "principled curtailment" (per Rix LJ at [39](i) in Tibbles );

b) The discretion should be exercised judicially and not capriciously; it must be exercised in accordance with the overriding objective (rule 1 FPR 2010), that is to say, "enabling the court to deal with cases justly, having regard to any welfare issues involved";

c) It is undesirable to allow litigants two bites at the cherry; I should be wary not to allow a litigant to re-litigate afresh a matter which has already been decided;

d) This avenue should not be used to undermine or subvert the proper route of appeal,

e) Discretion is likely to be more sparingly exercised in relation to a final order as opposed to a procedural, interlocutory, injunctive or case management order.

Ultimately, although Cobb J found that he did have jurisdiction under rule 4.1(6) FPR 2010 to vary or revoke the costs order, he was not, however, satisfied that the mother has established a proper basis to enable him to do so. In short, she had not demonstrated in my judgment a sufficient change in circumstances since the order was made which would enable the Court, in the exercise of its discretion, to revoke or vary the costs order.

Next up, a civil case! (stay with me here, it is family related…. I promise). The Court of Appeal decision in AB v Worcestershire County Council & Anor (Rev1) [2023] EWCA Civ 529 is a particularly interesting read for family practitioners; the appeal concerned the circumstances in which a local authority may be held liable for a breach of the rights of a child under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) when a child is said to have been subject to neglect or ill-treatment by a parent and the relevant local authority did not take steps to remove the child from the care of the parent.

The brief background was that the appellant, AB, had lived in the area of the second respondent, Birmingham City Council between July 2005 and November 2011 and the area of the first respondent, Worcestershire County Council, between November 2011 and January 2016. AB issued a claim damages for, amongst other things, a breach of his rights under Article 3 of the Convention. The particulars of claim alleged that AB had suffered ill-treatment and neglect by his mother which was of such severity that it evidenced a real and immediate risk that the appellant would suffer further ill-treatment falling within the scope of Article 3 if left in the care of his mother and, consequently, the respondent local authorities should each have removed the appellant from the mother's care to avoid that risk.

The local authorities applied for summary judgment pursuant to CPR 24 in respect of the claim based on the alleged violation of Article 3. The Judge at first instance granted that application. The Judge held that none of the incidents of mistreatment reported by AB, considered individually or cumulatively, involved actual bodily injury, or physical or mental suffering, or humiliation of the severity required to amount to treatment contrary to Article 3 of the Convention. In the circumstances, the Judge concluded that there was no realistic prospect of the appellant establishing that the respondents knew or ought to have known of the existence of a real and immediate risk of the appellant suffering treatment contrary to Article 3 of the Convention. Further, the Judge considered that there was no realistic prospect that the unstable family situation would have led the local authorities’ social services departments to conclude that removal of AB from the mother’s care by means of an application for a care order was required.

AB appealed. The principal ground of appeal is that the finding that there was no realistic prospect of AB establishing that he had been subject to treatment falling within the scope of Article 3 of the Convention was wrong and contrary to the documentary evidence before the Judge.

The appeal was dismissed on the basis that the Court of Appeal found that the Judge had acted within his discretion in dismissing the claim. The Court considered the chronology of events and the involvement of the respective local authorities and concluded that the Judge’s decision was correct in that none of the incidents reported by AB were sufficient to engage Article 3. The case is of interest as it addresses the legal framework concerning local authority’s duties to children within their areas and also addresses the issue of Article 3 and the circumstances in which it can be engaged. I often deal with cases where a local authority may have issued care proceedings belatedly and solicitors often ask what can be done; the answer is usually a direction to disclose papers from the care proceedings to the Official Solicitor so that she can consider the merits of any potential claim being made on the child’s behalf, however this judgment reminds us that engaging Article 3 is not necessarily straightforward and establishing whether a child has been subject to ‘inhuman or degrading treatment or punishment’ due to a local authority’s inaction may in some occasions, prove difficult (as it did here).

The Court of Appeal in Re A (Parental Responsibility) [2023] EWCA Civ 689 has confirmed that the difference in treatment between married and unmarried father’s within the statutory framework does not violate ECHR rights. The case involved an appeal from a decision of Russel J; the mother sought to appeal on the basis that Russell J had dismissed the mother’s application for a declaration of incompatibility under Human Rights Act 1998, in part because the judge had made a prohibited steps order which in practical terms removed from the father the right to exercise his parental responsibility. The differing treatment as between married parents and unmarried father’s and unmarried second female parents and step parents is that parental responsibility can be revoked in the case of the latter. Where parental responsibility is acquired under CA 1989, s.2, because the father or second female parent was married to, or in a civil partnership with, the mother, no provision is made in s.2, or elsewhere in the Act, for their parental responsibility to be brought to an end. This is in contrast to unmarried fathers, unmarried second female parents or step-parents, where the court is given power to bring parental responsibility to an end under ss 4(2A), 4ZA(5) or 4A(3). The parental responsibility of any person is, however, extinguished by adoption [see Adoption and Children Act 2002, s 46(2)].

Giving lead the judgment, the President dismissed the appeal;

‘Drawing matters together, it is clear that the difference in the treatment of unmarried and married fathers is justified by the long-standing principle that married fathers (and mothers) should have irrevocable parental authority/responsibility for their children. Ms Gallagher's repeated characterisation of the difference in treatment as being 'simply' because the father was married misses the point. Affording priority to the establishment, and maintenance, of stable family life by commitment through marriage or civil partnership is what it is all about. Whilst there is, therefore, a difference in treatment, and thus prima facie discrimination, as between married and unmarried fathers, the impact of that difference upon their children and the children's mothers is, in reality, minimal. Parliament has given the court power to empty a father's parental responsibility of all content and to prevent him making future applications to the court. A revocation order in the present case would make no material difference to the lives of the mother or children. Whilst the father retains the status of having parental responsibility, he also retains the status of being the children's 'father'; if the former could be removed, the latter would remain, with the consequence that the psychological or emotional benefit of revocation could only be minimal. The negative impact on a family that arises from an inability to apply to revoke parental responsibility, is, therefore, comprehensively outweighed by the overall benefit to the community of maintaining the priority that is attributed to marriage and civil partnership.

Although the point does not arise here, given the clear justification for the two different schemes relating to parental responsibility, if matters were more finely balanced, this court would need convincing evidence of a significant adverse impact of the policy on the wives and children of married fathers before holding that Parliament had acted incompatibly with the HRA and ECHR in this area of social policy in casting the law as it has done. For the reasons that I have given, the evidence of adverse impact fails to come close to achieving that quality.

In all the circumstances, the Appellant has failed to establish that the scheme within CA 1989, Part 1, and in particular the absence of a power for the court to revoke the parental responsibility of a married father, is in breach of ECHR Art 14 taken with Art 8, and the application for a declaration of incompatibility must, therefore, also fail.’

In conclusion, the Court of Appeal reached the same conclusion as Russel J, albeit via a slightly different process of analysis.

Finally, the one and only Lord Justice Peter Jackson gave lead judgment in ADA (Children: Care and Placement Orders) [2023] EWCA Civ 743. There have been numerous judgments on the issue of proportionality and care/placement orders, however this, in my humble opinion, is The Empire Strikes Back of such judgments (i.e. it is the authoritative one…. and no, Return of the Jedi is not a superior film). The judgment draws all of the strands together in terms of the questions that the Court must ask itself before making care and placement orders;

The proper approach to a decision involving adoption is well established. I have attempted to encapsulate the essentials in these earlier decisions:

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

"1. The recent decision of the Supreme Court in H-W (Children) [2022] UKSC 17 underlines that a decision leading to adoption, or to an order with similarly profound effects, requires the rigorous evaluation and comparison of all the realistic possibilities for a child's future in the light of the court's factual findings. Adoption can only be approved where it is in the child's lifelong best interests and where the severe interference with the right to respect for family life is necessary and proportionate. The court must therefore evaluate the family placement and 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 risk of harm or for mitigating its effects. It must then compare the advantages and disadvantages for the child of that placement with the advantages and disadvantages of adoption and of any other realistic placement outcomes short of adoption. The comparison will inevitably include a consideration of any harm that the child would suffer in the family placement and any harm arising from separation from parents, siblings and other relations. It is only through this process of evaluation and comparison that the court can validly conclude that adoption is the only outcome that can provide for the child's lifelong welfare – in other words, that it is necessary and proportionate."

Re K (Children) (Placement Orders) [2020] EWCA Civ 1503

"30. Finally, in Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761 I attempted to set out the questions that the court should ask itself when assessing risk of future harm and setting it in context:

(1) What is the type of harm that might arise?

(2) What is the likelihood of it arising?

(3) What consequences would there be for the child if it arose?

(4) What steps could be taken to reduce the likelihood of harm arising or to mitigate the effects on the child if it did? The answers are then placed alongside other factors in the welfare equation so that the court can ask itself:

(5) How do the overall welfare advantages and disadvantages of the realistic options compare, one with another?

(6) Ultimately, is adoption necessary and proportionate – are the risks bad enough to justify the remedy?"

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

"62. Turning to judgments in cases where a placement order is sought, the sequence of questions that must be asked are:

(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?"

I wonder who Peter Jackson LJ’s favourite star wars character is. I reckon he’s a Obi Wan fan (Alec Guinness version, not Ewan McGregor).

Michael Jones KC is a barrister at Deans Court Chambers.