ON APPEAL FROM CROYDON COUNTY COURT
His Honour Judge Atkins
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
LORD JUSTICE FLOYD
|Re: C (A child)
Mr Martin Downs (instructed by the London Borough of Sutton) for the First Respondent
Miss Sally Bradley (instructed by McMillan Williams solicitors) for the Second Respondent
Hearing date: 6th September 2013
Crown Copyright ©
Lord Justice McFarlane:
i) The local authority was asking the judge, firstly, to make a care order and to approve a final care plan providing for J's adoption, and, secondly, to make a placement order enabling the care plan to be put into practice. The care plan involved a gradual reduction of contact to monthly and thereafter letterbox contact twice a year.
ii) CG supported the local authority.
iii) EB, as I have already mentioned, sought a special guardianship order placing J with her. She put forward what the judge described as detailed plans for J's care, indicating that she would accept supervision by the local authority if the court considered that to be in the best interests of J. She further indicated that she would accept any other arrangement, if the court thought it right, including a residence order with the position to be formalised at a later date.
iv) The mother's position was in support of EB. She proposed herself as carer for J only as an alternative to EB. She was opposed to J being adopted. That had not always been her position. At an earlier stage she had favoured EG as a potential carer, saying that she did not consider EB to be suitable.
v) The father did not take any active part in the proceedings. At the date of the hearing he had not seen J for over a year. He had indicated that he wanted the local authority to decide what was in J's best interests. If J was to be adopted he would not seek contact, but he would consider seeking contact if J was in a family placement.
i) He doubted () EB's ability to deal with the mother. He considered that if the mother had contact with J twice a week as proposed, it would be "confusing" for J. He considered that the very fact of the proposal for contact showed that the family and EB in particular underestimated the likelihood of difficulty with the mother.
ii) Although resourceful, as a single carer with a disability and work and financial commitments, he had real doubts about EB's ability to manage.
iii) EB would need a certain amount of help, for which the family would be the first port of call. The mother still had quite a bit of growing up to do. There were conflicts from time to time and likely to be conflicts in the future.
iv) He was concerned about EB's relationship with J. After his birth, there had been a gap in contact between Christmas 2011 and July 2012. He did not attribute any blame to EB for this. Although EB and the mother were in the process of forming a relationship, there was still some way to go. He shared CG's concern about a recent incident when J was taken to EB's home and appeared to be upset.
v) Finally the Judge pointed to what he described as a "lesser concern". He thought there was a potential source of a problem if the father was to seek contact with J. The family had expressed what he described as "not a positive attitude" to the father. The judge later said that his decision was primarily based on the first four of the concerns.
i) A suggested lack of emotional warmth from EB towards J;
ii) A suggestion that her motivation for seeking guardianship arose from feelings of guilt
iii) An incident involving EB's use of a knife in 2007 in a wholly different situation.
"What I have to do is to weigh up all the evidence and points that I have mentioned and look at what is in [J's] best interest and decide what I consider to be reflective of his welfare. The conclusion I have come to in relation to [EB] is that the concerns significantly outweigh the advantages. I agree with the guardian that [J] does need a settled and secure home now. I am not satisfied that it would be attainable with [EB]. I agree with the local authority and the guardian as to [J's] welfare and what is the best way forward in relation to that and I disagree with the independent social worker Gretchen Precey."
"I should spell out that throughout this judgment and throughout this case I have borne in mind that what I am being asked to do is approve a course of action which is a huge interference with the right to family life of [J] and indeed all the members of his family. A greater interference is hard to imagine. That is something I have borne in mind throughout, but the conclusion that I have come to I consider is justified and proportionate for the reasons that I have given their lives in pursuance of the legitimate aim, mainly the welfare of this child [J]".
"What section 52(1) of the Act says is the court cannot dispense with the consent of a parent unless the court is satisfied the welfare of the child requires the consent to be dispensed with. That of course brings into play the welfare principle set out in section 1 of the 2002 Act. Those principles are well known, they are similar to but in important respects different from the welfare of principles in section 1 of the Children Act. Again I do not propose to set them out fully, but I specifically mentioned section 1(2) which says that the paramount consideration of the court must be the child's welfare, throughout his life. A somewhat different emphasis from that in section 1 of the Children Act.
Similarly 1(4) refers to the checklist in relation to the application of a placement order. Again the checklist is different from the checklist in the Children Act in important respects. In particular section 1(4)(c) refers to the likely effect on the child throughout his life of having ceased to be a member of the original family and at (f) the relationship which the child has with relatives, or any other relevant person. I very much bear those factors in mind. I think they are important factors. Nevertheless, for the reason I have given I consider that the welfare of J does require me to dispense with the consent of the parents to his placement and adoption. I am therefore going to dispense with the consent of the parents and make a placement order sought by the local authority."
i) She challenges the judge's conclusion that she would not be able to manage the practical side of looking after J given her resourcefulness and intelligence.
ii) She challenges the judge's conclusion about the difficulties that would arise between EB and the mother.
iii) She challenges the judge's conclusion about the lack of, and difficulties associated with, obtaining support from other family members; she submits that the judge failed to consider or weigh in the balance the likely continued support from EG and W, and the value of those relationships continuing.
iv) She submits that the judge failed to give weight to the potential advantage of J continuing to have a relationship with his mother.
v) She submits that the judge failed to address the inadequacies of the local authority's support plan, and the local authority's failure to advise EB;
vi) She submits the judge misinterpreted the evidence concerning J's distress during the contact at EB's home;
vii) She submits that the judge should have held that any risk represented by the father's contact could be contained.
viii) She finally submits that the judge gave insufficient weight to the evidence of the independent social worker.
'Adoption – essentials: (ii) adequately reasoned judgments
41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ's criticism of the judge in Re S, K v The London Borough of Brent  EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child)  EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):
"the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis."
She added (para 124): "there is little acknowledgment in the judge's judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case."
42. The judge must grapple with the factors at play in the particular case and, to use Black LJ's phrase (para 126), give "proper focused attention to the specifics".
43. In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child)  EWCA Civ 965, paras 49-50:
"In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."
We need not quote the next paragraph in McFarlane LJ's judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.
44. We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):
"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."
45. McFarlane LJ added this important observation (para 53) which we respectfully endorse:
"a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is 'the most draconian option', yet does not engage with the very detail of that option which renders it 'draconian' cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the 'draconian' nature of permanent separation of parent and child and they frequently do so in the context of reference to 'proportionality'. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child's welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case."
46. We make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance in what are amongst the most significant and difficult cases that family judges ever have to decide. Too often they are given scant attention or afforded little more than lip service. And they are important in setting the context against which we have to determine the specific question we have to decide in relation to Re W (Adoption: Set Aside and Leave to Oppose)  EWCA Civ 1535,  1 FLR 2153.
'The appellate approach
76. We can take this fairly shortly because the application of Re B in various family law contexts has been considered in a number of recent judgments in this court of Black LJ and McFarlane LJ: see Re A (Children)  EWCA Civ 1026, Re V (Children)  EWCA Civ 913, Re P (A Child)  EWCA Civ 963, Re G (A Child)  EWCA Civ 965 and, most recently, Re A (A Child)  EWCA Civ 1104. 77. We do not need to go through Re B yet again, except to note that it leaves undisturbed the approach in case management appeals set out by this court in Re TG (Care Proceedings: Case Management: Expert Evidence)  EWCA Civ 5,  1 FLR 1250: see Re B para 45 (Lord Wilson). Nor does the new learning in Re B affect the traditional approach to appeals from fact-finding determinations: Re A (Children)  EWCA Civ 1026, para 34.
78. For present purposes the key principles to be extracted from Re B are conveniently summarised in the judgment of McFarlane LJ in Re G (A Child)  EWCA Civ 965, paras 32-33:
"32 The second aspect of the Supreme Court decision in Re B which is relevant to the present appeal arises from their lordships' clarification of the necessary role of an appellate court where there is a challenge to the proportionality of a public law order authorising local authority intervention under CA 1989. Whilst the type of intervention considered in Re B was adoption, in my view the approach to be deployed must similarly apply to lesser forms of intervention. On this aspect the majority of the Justices (Lord Neuberger, Lord Clarke and Lord Wilson) concluded that the duty on a court, as a 'public authority', not to act in a manner which is incompatible with the Convention under Human Rights Act 1998, s 6(1) does not mandate the appellate court to undertake a fresh determination of a Convention-related issue (paragraphs 37, 83 to 90 and 136). The majority did not therefore hold that there was a need for a radical departure from the conventional domestic concept of a 'review' of a case on appeal, as opposed to a full re-appraisal on the issue of proportionality. The traditional appellate approach to issues of pure judicial discretion has been that of recognising the generous ambit of reasonable disagreement and only intervening where the judge's decision is seen to be outside that ambit and is 'plainly wrong' (per G v G  1 WLR 647). All five SCJs however identified that that ('plainly wrong') approach does not apply to an appellate review of the evaluative determination of whether the s 31 threshold is crossed; such a review is to be conducted by reference simply to whether the determination is 'wrong' (paragraphs 44, 91, 138 and 145).
33 Moving on from consideration of the s 31 threshold criteria, all five SCJs were agreed that the task of a trial judge making the ultimate determination of whether to make a care order was 'more than to exercise a discretion' (Lord Wilson SCJ, paragraph 45). The trial judge's task is to comply with an obligation under HRA 1998, s 6(1) not to determine the application in a way which is incompatible with the Art 8 rights that are engaged. The majority in the Supreme Court went on from that unanimous position relating to the role of the trial judge, to hold that 'the review which … falls to be conducted by the appellate court must focus not just on the judge's exercise of discretion but on his compliance or otherwise with an obligation' (paragraph 45). The 'plainly wrong' criteria in G v G being held to be 'inapt' for such a review."
79. The point was put succinctly by Black LJ in Re P, para 105:
"Because of the obligation of the trial judge not to determine the matter in a way which is incompatible with article 8 ECHR, the review by the appellate court must focus not just on the judge's exercise of his discretion in making a care order but also on his compliance or otherwise with that obligation"
80. In Re B itself, Lord Neuberger had said this (para 93):
"There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable."
He went on to say that the appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (v) to (vii).'
Children Act 1989
Welfare of the child.
(1)When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it,
the child's welfare shall be the court's paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
(4) The circumstances are that—
(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV.
(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
Adoption and Children Act 2002
Considerations applying to the exercise of powers
This sectionnoteType=Explanatory Notes has no associated
(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
(5) In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
(6) The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(8) For the purposes of this section—
(a) references to relationships are not confined to legal relationships,
(b) references to a relative, in relation to a child, include the child's mother and father.
'one alternative here is the local authority's care plan which is clearly in this case a realistic and achievable plan but the question is whether it is in J's best interest. To decide that I have to look at the alternatives.'
What then follows is the section of the judgment (summarised at paragraph s 8 to 14 above) in which the judge looks at each of the family members, including EB, before concluding that she is unable to offer the stable and settled home that J needs. That sequence is not, on its face, a consideration of what was the true alternative choice before the court, namely one between adoption or placement with EB.
a) Having cited the four/five central adverse findings that he made against EB as a carer (see paragraph 13 above) his conclusion that a permanent, settled and secure home would not be attainable with her is justified and, in my view, not susceptible to being overturned on appeal;
b) The factors relied upon to rule EB out are long-term in nature and, I am satisfied, that despite the use of the CA 1989, s 1 checklist at that stage of the judgment, the same findings would have led to the same decision had they been evaluated under ACA 2002, s 1;
c) The judge was plainly focussed on long-term, whole life planning and his decision that EB could not provide a sufficiently stable and settled home was made in the context of there being only one other alternative, namely adoption;
d) The judge clearly had the provisions of ACA 2002, s 1 and s 52 in his contemplation and paragraphs 90 and 91 (see paragraph 17 above) indicate that he had those factors in mind, he considered them to be important, but nevertheless he considered that J's welfare required adoption. I should indicate that for some reason the Note of Judgment that was before me when I granted permission to appeal did not contain any reference to the content of these two key paragraphs;
e) In terms of proportionality, at paragraph 84 (see paragraph 16 above) the judge indicated that he was fully aware that it is hard to imagine a greater degree of interference in the right to family life of J and his family, but, for the reasons that he had given, namely his adverse conclusions as to EB's ability to provide a long-term secure home, he considered that the course chosen was justified and proportionate as being in the child's best interests.
Lord Justice Floyd:
Lord Justice Patten: