Court of Appeal allows appeal over placement order after judicial analysis "fell significantly short"

The Court of Appeal has overturned a decision to make a placement order for an 18-month-old boy after finding that the judicial analysis "fell significantly short". 

In B (A Child), Re (Adequacy of Reasons) [2022] EWCA Civ 407 (25 March 2022) the boy's parents had contended that the placement order should be set aside as Recorder Sanghera did not conduct an adequate analysis of the evidence and that the judge's welfare analysis was legally in error.

The subject of the proceedings referred to as 'E', has been in foster care since birth. Before the judge made the adoption order, he was placed in a four-month residential assessment unit with his parents. Assessors later concluded that it would not be safe for him to stay with his parents.

The assessors voiced concerns about the parents denying responsibility for an incident that was subject to previous proceedings in which their daughter was harmed.

A psychological assessment of both parents was also carried out, which concluded that the parents would need to demonstrate a "sustained period of change" and would require therapeutic input over a period of at least six months.

However, issues arose when the final hearing of the local authority's application – which came before Recorder Sanghera – did not occur until November 2021, 11 months after the assessments were carried out.

The social worker and the parents had filed updating statements in August and September, but the reports from the residential assessment unit and psychologist were based on matters almost a year prior.

After a four-day hearing, the judge gave an extempore judgmen in which he summarised the local authority's final threshold document. However, the judgment did not record any finding as to threshold, Sir Andrew McFarlane, President of the Family Division, noted.

Sir Andrew said: "[The mother's counsel] submitted that only part of the local authority document had been accepted by the parents and, although it was conceded that the CA 1989, s 31 threshold criteria were met, the basis upon which the threshold was crossed must be limited to those concessions in the absence of any wider finding by the Judge."

The remaining three elements relied upon by the local authority, but not conceded by the parents, were:

1. Deficits in the father's intellectual functioning and personality.
2. The parents distrust professionals, deny and minimise concerns and reject support aimed at improving child safety.
3. The parents are unable to maintain good home conditions when they have a child in their care or to manage their finances.

The judge summarised the factors pleaded by the local authority and, relating to the point on maintaining good home conditions, observed that the conditions "are no longer considered to be in issue". He then recorded the parents' evidence with respect to the matters that were not conceded.

Sir Andrew said: "The s 31 threshold criteria are not referred to again until, in the course of a summary as to the legal structure under CA 1989 for determining an application for a care order, he stated: 'In this case, the evidence is clear and convincing, the threshold criteria have been satisfied.'

"No further explanation is given of the basis upon which they had been satisfied and, in particular, of the court's decision on the matters that had not been conceded by the parents. The threshold criteria are not referred to again."

Sir Andrew went on to criticise the judge’s findings on threshold. "The task of evaluating threshold goes to the core of the judicial exercise in every case. It is, in essence, what the case is about. Unless the court has a clear and detailed understanding of the basis upon which it finds, if it does, that a particular child 'is suffering or is likely to suffer significant harm', substantial difficulties will be encountered when the court then moves on, as it must, to evaluate future risk of harm at the welfare stage."

The Family President added: "In the present case, whilst no finding was made as to item (e) relating to the father's psychological functioning, the judge made findings as to the parents' lack of honesty and trust in their relationship with professionals, and he found that they had not taken on board the professionals' concerns. He therefore found that their insight and ability to safeguard their child is, as a consequence, severely limited. At no stage, however, did he draw these matters together or make any finding as to the likelihood of significant harm to E, or what the nature of that harm would, on the balance of probability, be."

Moving on to the claim that the judge failed to engage with oral evidence given at the hearing, Sir Andrew found the judge had wrongly omitted the parents' positions in his judgment.

The parents argued that in the time between the publication of the assessment reports, both dated December 2020, and the final hearing (November 2021), their lives had improved in a number of respects relevant to their ability to provide safe and good enough parenting for E. 

"[I]mportantly, there is effectively no account by the judge of the parents' evidence or of the general case put forward on their behalf," Sir Andrew said. "This, in my view, is a significant omission. A parent in proceedings of this nature should expect to see from the judgment that their case has been 'heard', with the judgment containing at least a short summary of their position and the judge's reasons for discounting it, if that is the position."

The Family President later said that the judge failed to engage with the parents' oral arguments, which went directly to the question of the assessment of future risk and was therefore central to the case. "[By] focussing very much on the written material, which largely arose from assessments made nearly 12 months earlier, and making little reference to the oral evidence of the parents, [the psychologist] and the guardian, the judge compromised his ability to undertake an assessment of future risk which took into account, not only the negative factors which the judge rightly identified in his judgment, but the potential positives that were being put forward by the parents and which had, apparently, been the subject of oral evidence from the professional witnesses."

Sir Andrew highlighted additional problems when considering whether the welfare decision should have been taken under the Children Act 1989 or the Adoption and Children Act 2002. He said the judge "fell into error, as a matter of law," in conducting his entire evaluation of the proposal that E should be placed with his parents within the context of CA 1989, s 1.

"The judge reached his conclusion on this point before making any reference to the requirements of ACA 2002, s 1, or adoption and 'nothing else will do'," Sir Andrew noted. "The decision in the case involved determining whether E was to be placed with his parents or adopted (or as the judge added, placed in long-term foster care). The presence of adoption in the range of realistic options dictated that ACA 2002, s 1 was the relevant provision, and the judge was in error in making any reference to CA 1989, s 1 in that context."

In addition, the Family President found that even if the judge had been correct in conducting a separate analysis of the care application under CA 1989, a crucial stage in that evaluation was missed out. By CA 1989, s 31(3A), a court deciding whether to make a care order is required to consider the 'permanence provisions' of the local authority care plan.

Sir Andrew said: "The permanence provisions in the care plan for E were for adoption, and there was a requirement to consider adoption, rather than looking solely at the option of parental care. The judgment does not contain any reference to the local authority plan of adoption during the evaluation of the care order application; had it done so, this step may have headed the judge away from his error in determining the issue under the incorrect statutory scheme."

The Family President went on to criticise the linear reasoning the judge applied in making his finding. "What is required is a balancing exercise in which each realistic option is evaluated for its own internal positive and negative features, before being compared, side-by-side, with each of the other such options. Unfortunately that process was not followed in this case," Sir Andrew found.

Allowing the appeal, he said: "[The] judicial analysis fell significantly short, not only in terms of evaluation of the evidence and the central point of the parents' case, but also because of the structure and content of the essential welfare balancing exercise which was, in a number of respects, fundamentally flawed as a matter of law".

He added: "This case, which might have been determined in the early part of 2021, but was not in fact heard until November 2021, must now, in March 2022, be sent back to be reheard in the Family Court. Following the termination of the assessment…..in January 2021, E has been waiting in short-term foster care for a decision to be made on his future care. Further delay in resolving these matters is therefore profoundly contrary to his best interests. Whilst the lists in the Family Court are filled with other pressing cases, I hope that the rehearing of this application can proceed without any further delay."

Lord Justice Peter Jackson and Lady Justice Nicola Davies agreed.

Peter Jackson LJ said the appeal succeeded because the judge's reasoning did not sustain his order. “The decision is unjust because of a serious procedural irregularity: CPR 52.21(2)(b).”

He added that the judgment in this case fell short in respects that were not specific to adoption cases.

Peter Jackson LJ said: “A judgment is the means by which the court delivers its decision to the parties and to the world beyond. There is no one way of doing that, but every judgment, whether delivered orally or handed down in writing, will have a structure. The structure chosen will depend on the nature of the case, but a reasonable structure is essential for disciplined and transparent decision-making. It helps the judge to make the best possible decision and others to understand why the decision has been made. The court's task is not accomplished by handing down a decision that happens to be correct if it is not also properly explained. Fairness to the losing party demands no less.”

The Court of Appeal judge said the need for structure was perhaps particularly true of oral (extempore) judgments. “These are to be encouraged as an efficient use of judicial time, but before embarking on an oral judgment it is obviously essential to establish (and helpful to the listener to declare) a structure so that steps in the presentation or reasoning are not inadvertently omitted when a decision is being given live.

Lord Justice Peter Jackson said a good judgment would “in its own way, at some point and as concisely as possible”:

(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.

The last two processes – evaluation and explanation – are the critical elements of any judgment, he added. “As the culmination of a process of reasoning, they tend to come at the end, but they are the engine that drives the decision, and as such they need the most attention. A judgment that is weighed down with superfluous citation of authority or lengthy recitation of inessential evidence at the expense of this essential reasoning may well be flawed. At the same time, a judgment that does not fairly set out a party's case and give adequate reasons for rejecting it is bound to be vulnerable.”

In the present case, it was clear that the parents' history was a matter of serious and long-standing concern, but the key issue was whether and to what extent they had shown the ability to change, particularly during the course of the past year, Peter Jackson LJ said. “Their case about that was squarely put and, in fairness to them, and to E, it had to be squarely addressed. As My Lord has shown, that did not happen…. [The parents’] core case was not recorded, key disputed threshold allegations were not clearly determined, and the judge's evaluation of the options and explanation of his decision were, I regret, perfunctory.”

Turning to judgments in cases where a placement order is sought, Peter Jackson LJ said 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?

In this case, the judge did not take a systematic approach and the Court of Appeal could not therefore uphold his decision, Peter Jackson LJ said.

Adam Carey