The Court of Appeal has allowed an appeal by a council over a judge’s order that effectively rejected the local authority’s care plan for adoption for an 18-month-old child (A).
The original order was made in care proceedings by Recorder Atherton on 12 April 2021. The order was made at the final hearing but it was not a final order in that it gave directions for further documents to be filed including a position statement from Durham Council setting out "their response to the judgment and clarification of their position". Recorder Atherton had concluded that A "should be restored to her mother's care".
In R (A Child), Re  EWCA Civ 1019 Durham’s case was that the judge misdirected himself as to the law; that the judgment contained "a wholly inadequate welfare evaluation"; and that his decision was wrong for a number of reasons including in respect of his approach to the evidence.
The appeal was opposed by both the mother and the Guardian. However, as the hearing of the appeal progressed, it became clear that the judgment was difficult to sustain.
Lord Justice Moylan, with whom Lord Justice Baker and Lord Justice Nugee agreed, said their acknowledgement of this was focused on the issues of:
(a) whether the judge had decided that A should be rehabilitated to the care of her mother without having undertaken a proper welfare evaluation in his judgment; and
(b) whether his decision, in particular to "reject" adoption, was, in any event, unsustainable because the "package of support" which he determined would be required if A was to live with her mother was, as referred to in the recital, "undefined" and because it was not known what support would be available.
Allowing Durham’s appeal, Lord Justice Moylan found that the judgment in the present case did not contain any, or any sufficiently, "comprehensive evaluation of the pros and cons of (the) two competing options" (adopting McFarlane LJ's words from Re W).
“This is required in every case although what is sufficient will, inevitably, vary. However, in a case which was described by the Guardian as ‘finely balanced’, I would suggest that particular care needed to be taken to ensure that the evaluation was sufficiently comprehensive,” the Court of Appeal judge said.
Lord Justice Moylan added that, making all due allowances for the fact that this was an ex tempore judgment, the judge did not carry out the required balancing exercise as referred to in Re G.
“As a result of his rejection of the option of adoption before he had undertaken any welfare analysis he did not analyse and weigh the positives and negatives of each option nor did he, then, compare the merits of each of the potential options. The failure to conduct this exercise properly is demonstrated by the judge's failure to apply the welfare checklist in the 2002 Act [the Adoption and Children Act 2002] and by the fact that his analysis of the checklist in the 1989 Act [the Children Act 1989] was confined to placement with the mother.”
The Court of Appeal judge said this omission was not corrected by Recorder Atherton’s clarification of his ex tempore judgment. “This can be seen, for example, from the fact that nowhere does the judge include in his analysis of the options the risk that the proposed rehabilitation of A with her mother might break down and the potential consequences of that for A. As referred to above, the Guardian agreed that the risk of this breaking down was ‘quite significant’.”
Lord Justice Moylan said he also considered that the expression "nothing else will do" was “misapplied as ‘a shortcut test’ in the way identified by McFarlane LJ in Re W.”
He added: “Finally, I am equally persuaded that the absence of any clarity as to what "package of support" would be available meant that the judge was not in a position to carry out the required balancing exercise. As the judge considered that this was necessary if the mother was to be able to care safely for A, he needed to know what would be available before deciding which care option would best meet A's welfare needs.
“I should make clear that I am not saying that this was an evidential ‘gap’ as suggested by the Guardian. I am simply saying that the judge's decision as to which option would meet A's welfare needs was flawed because this was a pivotal element of his decision but there was, at best, considerable uncertainty as to what would be available. This would be relevant also to the risk that the proposed rehabilitation might break down.”
Lord Justice Moylan stressed that in ordering a rehearing, the Court of Appeal was “obviously” not giving any indication as to what the outcome of that rehearing should be. “The order is set aside because, regrettably, the judgment did not contain the required analysis and not because the judge reached a conclusion which was not open to him.”
The Court of Appeal directed that the case should be listed as soon as possible for a case management hearing before a judge allocated by Cobb J, as Family Division Liaison Judge for the North East.