Court of Appeal sets aside order that was not open to Family Court judge as matter of law

The Court of Appeal has set aside a care order made in respect of a nine-month-old baby, after concluding the judge made an order which was “not open to her in law”.

In J (Care Plan for Adoption), Re [2024] EWCA Civ 265, Lord Justice Baker allowed the appeal on grounds one and two, deciding it was “neither necessary nor appropriate” to address the remaining three grounds.

The appeal was made by a mother against a care order made in respect of her son, J.

J has four older siblings. In January 2023, when the mother was pregnant with J, the local authority started care proceedings in respect of her four older children after an allegation that the mother had assaulted one of the children in the street.

A psychologist’s assessment and a parenting assessment by the local authority each concluded that the parents could not safely care for any of the children.

Immediately after J’s birth, the local authority initiated proceedings and the baby was made subject to an interim care order and, on discharge from hospital, placed in foster care.

The initial social work statement in the proceedings proposed that there should be a further parenting assessment to consider whether the parents could care for J on his own. In the event, however, no further assessment was carried out.

The proceedings in respect of J were listed for final hearing alongside those relating to the older children.

The local authority filed final care plans. For the four older children, the plan was for long-term foster placements but, in the case of J, “for him to achieve permanency through adoption”.

The judge noted the local authority’s intention was for an application for a placement order in respect of J to be considered at the final hearing of the care proceedings.

However, at the date of the final hearing the application for a placement order had not been filed.

At the conclusion of the final hearing on 2 and 3 November 2023, the judge made care orders in respect of all five children and gave directions for the listing of the placement order application in respect of J later that month.

Summarising the hearing before the judge, Lord Justice Baker noted: “The judge had a very heavy list of cases with a total time estimate of twelve hours. […] At the outset, the judge was informed that the placement order application had not been filed. She expressed the view, however, that the parents were expecting that application to be canvassed at the hearing so she would proceed to consider the local authority’s application for a care order on the basis of the care plan, leaving the placement order, and the question of dispensing with the parents’ consent, to a later occasion.”

The Court of Appeal judge noted that counsel then delivered submissions on the care order application. He said: “Ms Reynolds [for the mother] submitted that, in the absence of a placement order application, the local authority’s care plan was inchoate.”

The judge gave her decision in these terms:

“I think I have got to bite the bullet, frankly. It is not something-- if I am wrong, then I am wrong, and somebody else will tell me. I am going to make the care order and I stand by what I say in terms of, essentially, the care plan which I approve is one of a permanent placement outside the family, I will hear the placement application and it is at 24 that point that I will consider all the matters under both the Children Act checklist and indeed the Adoption Act checklist and consider the issue of consent. So there is further opportunity for the parents to make submissions at that particular point, or to argue that there should be--you know, all the arguments that you can make in that respect. I am not going to go through what they can and cannot do, it is the full spectrum, and I will consider it at that particular point. But, of course, I have given a judgment in the care proceedings, and that stands and is available for appeal if that is what is wanted, but will also inform various decisions going forward whatever they are.”

Lord Justice Baker said: “Ms Reynolds then applied for permission to appeal. Her grounds included that the order was unjust because of a serious procedural irregularity, namely the judge’s conduct of the proceedings. She referred to the judge raising her voice and banging her fist on the table. The judge delivered a further judgment giving her reasons for refusing permission.

“The order drawn after the hearing provided that J be placed in the care of the local authority and gave directions for the hearing of the placement order application.”

Turning to the present appeal, Lord Justice Baker outlined the mother’s five grounds as follows:

1. The judge was wrong to make a final care order in circumstances where the court did not have a complete care plan before it to underpin the final care order that it made.
2. The judge erred in her welfare and proportionality evaluation which was flawed and unfair because the judge adopted a linear, as opposed to holistic, approach, whereby the mother’s case and the other options available were argued, considered and evaluated under the Children Act only, and not on the basis of the heightened test for adoption (that ‘nothing else will do’) as summarised by Baroness Hale in Re B (A Child).
3. The judge failed properly to consider the mother’s case that (a) it was wrong to proceed in the absence of a placement order application and (b) there was not sufficient evidence for a final care order to be made where there had been no assessment of the parents’ capacity to care for J alone.
4. The manner in which the judge expressed herself in her judgment was unfair to the parents.
5. The judge’s decision was unjust because of serious procedural or other irregularities in the proceedings. Her conduct of the case and behaviour towards the parties and counsel was unreasonable and bordered on the oppressive.

The appeal was opposed by the children’s guardian. Although the local authority opposed the appeal on grounds 3 to 5, it did not oppose it being allowed on grounds 1 and 2.

Considering the application, Lord Justice Baker said: “The care order was made under Part IV of the Children Act 1989. Under section 1(1)(a) of that Act, when a court determines any question with respect to the upbringing of a child, the child’s welfare “shall be the court’s paramount consideration”.

“Section 1(1) and (2) of the Adoption and Children Act 2002 contain a similar provision, but with an important distinction. They provide that, “whenever a court or adoption agency is coming to a decision relating to the adoption of a child … the paramount consideration of the court or adoption agency must be the child’s welfare throughout his life”. (Baker LJ’s emphasis).

He noted: “Where, in an application for a care order, the plan is for adoption, the presence of adoption in the range of realistic options determines that section 1 of the 2002 Act is the relevant provision, even if no application for a placement order is before the court.”

He found: “Unfortunately, that was not the course followed by the judge in the present case, even though she was being asked to make a care order on the basis of a local authority care plan for adoption. She could not have been clearer that she was applying section 1 of the 1989 Act, not section 1 of the 2002 Act. She said so expressly to Ms Reynolds in the course of submissions. And at paragraph 27 of her judgment, she said that she was not considering the child’s welfare throughout his life as the paramount consideration.”

Counsel for the mother submitted (under ground 1) that the judge was in “no position” to approve the plan because she did not have before her all the information required before she could approve the care plan for adoption.

Counsel on behalf of the children’s guardian acknowledged that the judge erred in applying the checklist under section 1 of the Children Act 1989 rather than the “enhanced” checklist under section 1 of the Adoption and Children Act 2002.

They argued, however, that she “deliberately” sought to steer a course between (a) the technical difficulty generated by the absence of a formally issued placement order application and (b) the delay that a wholesale adjournment of the case would cause. She did not, therefore, approve a care plan for adoption but merely a plan for permanency.

Lord Justice Baker said: “The flaw in this argument is that the court was not considering a general plan for permanency but a specific plan for adoption. Under section 31(3A), the court was required to consider the permanence provisions of the section 31 plan for the child concerned (judge’s emphasis).

“Under section 31(3B), the provisions of the plan which the court had to consider included such provisions as provided for adoption, the current and future needs of the child, and the way in which the long-term plan would meet those needs. The evaluation of those provisions, and the way in which it was said they would meet the child’s current and future needs, was manifestly a “decision relating to adoption” falling within section 1 of the 2002 Act. Such evaluation required the court to consider, inter alia, the likely effect on the child (throughout his life) of having ceased to be a member of the original family, the relationship which the child has with relatives, and the value to the child of that relationship continuing. That is part of the proportionality assessment which a judge is required to undertake.”

Allowing the appeal on grounds 1 and 2, Lord Justice Baker concluded: “In fairness to the judge, her instinct at the end of her judgment was to make an interim care order but in subsequent submissions she was persuaded to take a different course. She was understandably anxious to bring the proceedings to an end as soon as possible. She did not have the benefit of the legal analysis put before us by leading counsel, nor the time for reflection available to this Court but not to hard-pressed judges sitting at first instance. But the regrettable fact is that she made an order which was not open to her in law and which must therefore be set aside.”

The judge directed that the application for a care order and the application for a placement order be listed before another judge. He found it was “neither necessary nor appropriate” to address the remaining grounds of appeal.

However, in his final remarks, the judge said: “I propose to say nothing about the other grounds of appeal, save for the following brief observations about ground five. Ms Reynolds was plainly in a difficult position. The judge was faced with an extremely heavy list and presented with submissions which she found unattractive. There were some robust exchanges in which the judge said things which, on reflection, she might conclude could have been expressed differently. We have not heard a recording of the hearing so have not heard the tone in which the judge addressed counsel nor confirmed counsel’s assertion that the judge banged the desk. It is difficult to envisage circumstances in which it is ever appropriate for a judge to bang the desk. But reading the transcript as a whole, I did not consider that the judge conducted the hearing unfairly or in a way which led to an unjust outcome, save for the errors identified in grounds one and two on the basis of which I would allow this appeal.”

Lady Justice Andrews and Lord Justice Lewison agreed.

Lottie Winson