Guardian succeeds in part over court orders made in relation to three siblings

The Court of Appeal has allowed a Guardian’s appeal against an order to revoke placement orders in respect of two young boys, but has dismissed her appeal against the decision that their younger sister, G, should continue to live at home under a supervision order.

In H (Children: Placement Orders) [2023] EWCA Civ 1245 (25 October 2023), Lord Justice Peter Jackson restored the placement orders made in respect of the boys, but dismissed the Guardian’s appeal in relation to G.

The case concerned three children. The older two are boys who are now aged four and three. The third child, G, is a one-year-old girl, who has lived with her mother since birth.

The children have the same mother. The boys' father is F1, while G's father is F2.

The judge noted that the boys have lived in foster care since the spring of 2021 and placement orders were made at the end of that year. In their case, the order under appeal revoked the placement orders on the mother's application.

In G’s case, the Guardian challenged the decision that her living with her mother should continue under a supervision order, rather than her being removed under a care order with a view to adoption.

The three children are the youngest of the mother's seven children. The judge noted that the involvement of the Family Court began in April 2021, when care proceedings began and all the children, except the eldest, were placed in foster care.

The second eldest child (B, aged 17), who has learning difficulties, is in foster care but “likely to return home on reaching majority in October 2023”, said the judge.

The threshold was agreed for care proceedings in 2021 on the basis of: “the children's exposure to domestic violence between the mother and F1, that had recently led to his imprisonment; the parents' anti-social behaviour and repeated shoplifting; the mother's involvement with F2, a drug user who was in a state of mutual enmity with F1 that would periodically break out into violent incidents; the mother's own use of drugs; and neglect of the children's health and educational needs”.

In November 2021, the Guardian, who represented the children then as now, supported the application for care orders and advised that in the case of the youngest two, the boys, “the balance tipped firmly towards a plan of adoption”, said the judge.

On 10 December 2021, Her Honour Judge Davies made care and placement orders, bringing the first set of proceedings to an end. In July 2022, potential adopters were identified for the boys.

Turning to the events since the birth of G, the Court of Appeal judge noted that G was born to the mother and F2 in August 2022. The local authority began care proceedings the next day, which were allocated to His Honour Judge Tolson KC.

His Honour Judge Tolson KC refused the local authority's application for an interim care order with a plan for G's placement in foster care and he made an interim supervision order.

The Court of Appeal judge noted: “The mother and F2 gave a number of undertakings to the court, including that the mother should have no contact whatsoever with F1 or F2. On that basis, G remained in her mother's care.”

On 9 September 2022, care and placement orders were made in proceedings concerning F2's 5-year-old child from another relationship, with that child being said to have been harmed by “exposure to F2's chaotic and criminal lifestyle and by his dysfunctional relationship with G's mother”.

The next day, the mother and F2 were caught shoplifting together in a games store.

Following these events, the local authority renewed its application for an interim care order, which was refused by the judge on 6 October 2022, and then again on 14 November.

On 10 January 2023, the boys were matched with the potential adopters and contact ceased. On 25 January 2023, the mother applied for permission to apply to revoke the placement orders and on 13 March 2023, the judge granted her application without opposition from the local authority or the Guardian, said the Court of Appeal judge. The adoption plan was paused to await the outcome of the application.

The final hearing took place on 24-25 May 2023, at which the local authority considered that the progress made by the mother was “just about sufficient” to allow G to remain in her care, said Lord Justice Peter Jackson.

He added: “However, the social workers' assessment was that the boys' substantial needs could not be met by the mother on top of her responsibilities to G and in due course B.”

In a reserved judgment given on 12 July 2023, the judge noted that the mother's case was not that the two boys should immediately return to her care, but that the care orders which would be reinstated on revocation of the placement orders should remain, but with a care plan for a return to her care.

The Court of Appeal judge noted that the judge “addressed the welfare checklists for G and the boys in turn”. As to G, the judge said:

“G is bonded to her mother and her inner feelings, although they cannot be expressed in words, would obviously be for this bond to continue. G's physical care and emotional needs are being met and it seems will continue to be met. The only source of potential harm for her lies in her mother's lifestyle and in particular the risks from relationships with volatile men.

“[…] there is no indication that either father (or any other man in the mother's life) would deliberately harm a child. I find this an important qualification to the level of harm to which any child in the mother's care would currently be exposed.”

The judge concluded that G must remain in her mother’s care, and that a supervision order is “appropriate”.

As for the two boys, the judge concluded that the boys should remain in their current placement, and that the care plan should be for them to be returned to their mother's care.

The judge’s reasoning, as outlined by the Court of Appeal judge was as follows:

“In my judgment the core consideration is the prospect of the mother becoming able to care for the boys in the future within a reasonable time frame, which I believe has to be measured in months rather than years. I have reached the conclusion that the prospects are good. I can see no reason why the boys should not return to her care assuming only (i) that G continues to thrive; (ii) that the mother proves she can function as a carer after B's return; and, (iii) there are no violent incidents which threaten the children.

“The long-term concerns set out above in respect of G will remain, but I cannot see that they can permit G to be in her mother's care but somehow rule out her care of the boys. I acknowledge that different considerations can apply to much older children (in this case the boys) which may justify care by a parent when younger children are removed. Nevertheless, I feel it will be a rare case in which one young child returns but two other young children must face compulsory adoption.”

Lord Justice Peter Jackson said the grounds of appeal brought by the Children’s Guardian stated that the judge:

1. Erred in the analysis of the risk of future harm.
2. Placed excessive weight on the lack of intent to harm and failed to properly consider the likely impact of significant emotional harm as a consequence of exposure to incidents of domestic abuse and adult conflict.
3. Insufficiently distinguished between the differing needs of the children and the mother's ability to meet them.
4. In consequence, failed to conduct a balanced assessment of the welfare options.

Counsel for the Children's Guardian submitted that the judge's findings made his assessment of risk “unsustainable”.

He noted that the judge found that both fathers are violent, aggressive and unpredictable and that F2 poses a “significant risk” to any partner and to others with whom he comes into any kind of conflict.

He submitted: “The mother is likely to remain dishonest and any risk will be unmanageable. The fact that harm is not caused intentionally does not protect children from its effects.”

Lord Justice Peter Jackson noted that the Guardian was not arguing for G to be placed at home under a care order but argued that she should be removed with a plan for adoption.

In regard to the boys, the Guardian argued that the judgment is “silent about their extra needs” and the judge was wrong to reject the professional assessment that the mother would struggle to cope with three young children and a needy young adult, said the Court of Appeal judge.

Counsel for the local authority submitted that the order in relation to G should be upheld.

“As to the boys, he submitted that in order to revoke the placement orders there must at the very least be a reasonable evidence-based expectation that rehabilitation to the mother will succeed within an acceptable time frame”, said Peter Jackson LJ.

Discussing the appeal in relation to G, the Court of Appeal judge said: “The decision under appeal is expressed in an analytical judgment in which a judge with significant knowledge of the family situation directed himself correctly on the law and made clear primary findings of fact, having referred to all of the relevant factors”.

He added that nothing less than a “significant error of reasoning” could justify intervention by the court, which “has not been shown in G's case”.

“The judge was clear-sighted about the mother's frailties and the consequent risks, but he saw sufficient signs of improvement which, taken together with the reports of the quality of care that has so far been given, led him to a conclusion that was clearly open to him on this evidence. Time may bear out the Guardian's bleaker predictions, but I do not accept that the judge was bound to reject the care plan and require the local authority to remove G”, he concluded.

However, Lord Justice Peter Jackson described the position of the boys as “fundamentally different” in two main respects:

• The significance of the history for the welfare assessment in their cases. They were necessarily removed from their mother at a very young age. In December 2021, the case for adoption was compelling. In the next 18 months, the mother instantly had another child by another unsafe man and after the birth she repeatedly flouted the safety plan under which she had been allowed to retain care of that baby. Meanwhile, the return of B, a very needy young person, was looming. The continued placement of G at home was, and remained, in the balance. Even allowing for some limited recent improvement, the context in which the application for revocation of the placement orders arose was not encouraging.
• The boys, who urgently need a permanent family that can give them skilled parenting, have been kept waiting for what now amounts to 2½ years. They had said goodbye to their birth family and been prepared for adoption. That plan could only sensibly be sacrificed in favour of a plan for rehabilitation if the evidence showed that success could be predicted with a high degree of confidence.

The Court of Appeal judge noted that the judge “pinned his decision” on an assessment of the prospect of the mother as being able to care for the boys within a reasonable time frame.

He said: “He found the prospect to be good, and he concluded that there was no reason why the boys should not return on three assumptions: that G continues to thrive, that the mother continues to function after B returns, and that there is no violence around the children.”

However, he argued that if the judge had questioned how realistic the final care plan was, “he would in my view have been driven to conclude that the prospect of a successful reunification of the boys was no more than speculative in the light of the evidence as a whole”.

Lord Justice Peter Jackson added: “As it was, a care plan along those lines would effectively delegate a final decision about rehabilitation to the local authority and contain the obvious possibility of further litigation and delay.”

The Court of Appeal judge noted that the judge made the point that although different considerations applied to the boys and G, he could not see that the long-term concerns in respect of G could permit her to remain at home but somehow rule out the mother as a carer for the boys.

On this, he said: “Even ignoring issues of overload and each child's special needs, I cannot uphold this line of reasoning.”

He added: “The decision appears to have been unduly influenced by a perception that it would be unusual for older children to be adopted while a younger child remains at home.”

Concluding the case, Lord Justice Peter Jackson upheld the judge’s decision in relation to G, but discharged the order in relation to the boys, “on the basis that the predominant welfare features of delay and uncertainty were bound to lead to the conclusion that adoption remained the only safe option for them”.

Therefore, the Guardian’s appeal was allowed in relation to the boys, but dismissed in relation to G.

Lord Justice Males and Lady Justice Elisabeth Laing agreed.

Lottie Winson