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||Neutral Citation Number:  EWCA Civ 240
||Case No: B4/2017/1863
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
Family Court in Southampton
His Honour Judge Hess
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCCOMBE
LADY JUSTICE KING
LORD JUSTICE PETER JACKSON
Kate Branigan QC and Judy Earle (instructed by Abels Solicitors) for the Appellant
Jessica Habel (instructed by Southampton City Council) for the Respondent
Hearing date: 24 January 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lady Justice King:
- This is an appeal by MR (Mother) against an order made by His Honour Judge Hess on 16 June 2017 in respect of her daughter E who was born in November 2012 (5 years 2 months). By his order the judge:
a) Dismissed the mother's application to discharge a care order made by HHJ Miller QC on 31 March 2016:
b) Made a placement order pursuant to s.21 Children Act 1989.
- Permission to appeal was granted by McFarlane LJ on 3 November 2017. The issue before the court is as to whether the judge had fallen into error by failing adequately to make findings as to the risk of future harm in the event that E returned to the care of her mother and whether the judge thereafter gave a sufficiently clear and reasoned analysis of the factors which in his view made up the balancing act and which ultimately led to his concluding that only permanent separation from her mother would be in her interests.
- At the conclusion of the hearing the parties were informed that the appeal would be allowed and the matter remitted for a rehearing. The following are my reasons for allowing the appeal.
- The mother, who is now aged 35, is of Zimbabwean origin having come to live in the UK in 1999 aged 19. On her arrival in this country she lived with family members and trained as a nurse. Her relationship with E's father, JM, lasted for some three years but came to an end in 2012 upon the mother realising that she was pregnant with E. The mother was thereafter, at all times, the sole carer of E.
- On two occasions, 23 October 2014 and 8 May 2015 the mother took E to hospital by ambulance having administered an epi-pen in the belief that E was suffering an allergic reaction. Medical opinion was that the epi-pen had been administered unnecessarily on both occasions. A number of multidisciplinary meetings were held under the local hospital trust's Factitious and Induced Illness (FII) guidelines in the absence of the mother and, (from the limited information available to this court) it appears that a decision was made to arrest the mother. The mother was accordingly arrested on 17 June 2015 on suspicion of fraud and neglect; and the two year old E was removed under police protection powers and placed in foster care with an interim care being made on 19 June 2015. E has been in the care of foster carers since that date.
- No charges were pursued and, the experts in the field of FII who prepared medical reports, concluded that this was not a case of FII but rather the actions of an overanxious mother.
- The local authority initiated care proceedings and assessments took place. The parenting assessments of the mother were positive on the basis that she would live with her aunt and uncle. Unfortunately, some time around January 2016 this preferred option fell away as, the court was told, the aunt and uncle who were working professionals, required financial resources to be made available in order for a full-time nanny to be employed before they were prepared to take E and her mother into their home. This support was neither available, nor appropriate, and unhappily an alternative care plan had to be considered.
- The next care plan was for E to live with her father as sole carer and it was this care plan that was put before the court at the final hearing of the care proceedings before Judge Miller on 31 March 2016. At court was an agreed threshold document which, unusually, I set out in full:
"Agreed Threshold To Satisfy s.31 Of The Children Act 1989
It is accepted by all parties and agreed by the Court that at the relevant date (17.6.16) the child, E, had suffered and/or was at risk of suffering significant harm attributable to the care given to her by her parents, not being what it would be reasonable for a parent to give because:
1. The mother was an over-protective parent, and as a result misinterpreted some of E's symptoms, not least because of the mother's unawareness of the severity of E's sleep apnoea.
2. The mother accepts that her over-protectiveness led her to administer E's epi-pen to her on 2 occasions when this was objectively not necessary. The mother says that she did this in the honest but mistaken belief that E was suffering a serious allergic reaction.
3. The mother accepts that with hindsight that her own medical training should have put her in a better position to respond appropriately, however her concern as a mother took over and prevented her from seeing the situation objectively.
4. The mother can see how the way she responded and acted led a range of professionals to be concerned about the risk of escalation of medical interventions which E might receive, and to question the mother's motives for seeking medical and/or financial assistance. The mother accepts that this could have impacted on E's development which has accelerated in foster car.
5. The mother now realises that the way in which she presented E's difficulties made them look more serious than they actually were.
6. Both parents failed to give consistent and reliable information as to their roles in E's life and their ability to provide care for her before and after she came into care."
- Supporting the care plan was a written agreement of the same date which included amongst other things the requirement that:
i) The local authority provide six sessions of reflective work/therapy for the mother to address issues of anxiety around E's health needs and the reasons for E coming into care.
ii) The mother to engage in therapy and demonstrate an ability to work with professionals.
iii) For the parents to attend the Incredible Years parenting course.
- It is common ground that the mother complied with these requirements and in addition attended and funded counselling for herself.
- Sadly for E, this second care plan also broke down three months later in June 2016. The father disengaged with the rehabilitation process and he has since played no part in these proceedings and no longer sees E.
- By this time E was three years six months and had been in foster care for a year. The local authority decided to reassess the mother, hopeful that E could return to her care. In August 2016 the mother married her partner RR with whom she continues to live. The couple have no housing or financial difficulties.
- On 11 October 2016 a social worker, Helen Freebody, having conducted an assessment over six sessions with the mother (and RR), concluded that the mother was unable to meet E's emotional needs and there should be no further delay in setting in motion a permanent plan outside the family. I note that the conclusions rely heavily (although not exclusively) on the advice of a Dr Sharon McKinnon from BRS (Building Resilience and Strength) who had been providing support to the foster carers. Dr McKinnon expressed her views having viewed a video of the recorded contact session but without having seen the mother. Dr McKinnon herself was clear the views were based on a very brief observation of part of a contact on 1 October and that she had not had sufficient time to review all the recorded contacts. Notwithstanding this, it seems clear to me that Dr McKinnon's suggestion that E and her mother would require lengthy therapeutic intervention substantially influenced the assessor's view that the mother will require intervention to "address her emotional misattunement with her daughter" and that such intervention would be "essential" before any reunification could be considered safely.
- This report was presented at a planned meeting on 28 October 2016. After the meeting which now ruled out rehabilitation, the mother, unsurprisingly in the circumstances, made an application to discharge the care order. A raft of assessments were then carried out by the local authority. Each highlighted what was regarded as E's complex emotional needs and some attachment difficulties with the mother together with the inability, it was said, of the mother to understand and accept the necessity of E having been made the subject of a care order. (The mother accepted that the epi-pen had been administrated unnecessarily, but did not accept that in doing so she had caused E significant harm).
- A directions hearing took place on 9 January 2017 which provided for a parenting assessment of the mother and RR and the disclosure of the papers and reports (including psychiatric and paediatric evidence) filed in the previous proceedings into the current proceedings. A case management hearing took place a few days later. The matter was timetabled for a final hearing on 2 May 2017, with the mother being directed to lodge any application for experts by 17 March 2017 and for the local authority to file any application for a placement order by 4 April 2017.
- Ms Branigan QC, representing the mother on this appeal, explained to the court that those representing the mother in the court below were of the opinion that given the nature of the threshold findings, the developmental difficulties from which E suffered (of which more shortly) and the suggested attachment difficulties, such a complex combination of features necessitated assessment by a psychologist or psychiatrist of appropriate expertise. Time was however running out and the judge had (she said) been understandably clear that the hearing could not be further delayed. In those circumstances, given that an independent social worker could report in time for the trial whereas a psychiatrist could not, an application was made on behalf of the mother for the instruction of an independent social worker rather than for a psychiatrist/psychologist. The application was refused.
- In the meantime the longstanding social worker had left and moved abroad. The new social worker filed a final statement recommending a placement order with a plan for adoption without having met the mother. On 21 April 2107 the court was told that the children's guardian had been involved in a serious road traffic accident and would be recuperating for many months. In those circumstances the court put back the hearing for a month to June 2017 and a newly allocated children's guardian was appointed. In May 2017 the new social worker now having met the mother, filed a second statement, in favour of adoption and on 6 June 2017, the new children's guardian, having met the mother once, filed her final analysis supporting the local authority application and the care plan for adoption.
- The final hearing took place before the judge over three days; he heard evidence not only from the mother and RR but all the various local authority witnesses and the children's guardian.
- In the meantime, although the mother had, to her credit, done all that was asked of her in the working agreement and was now in a long term stable relationship, she had in a number of other important respects, done herself and E no favours. Specifically, she had behaved in such a way towards the therapeutic foster carers with whom E was living between September 2016 and February 2017 that they had felt unable to continue to offer E a home. As a consequence, to her considerable distress, E had to be moved to live with a new family. This situation arose because during contact the mother had, on six separate occasions, identified what she regarded as marks or unexplained injuries on E. She demanded body maps and inappropriately inspected E for injuries. The final straw came when a mark, said to have been caused by hot wax was, the mother suggested, more likely to have occurred from contact with a hard surface such as an iron. The foster carers, unable to cope any longer with such scarcely veiled allegations, asked for E to be moved.
- Ms Branigan has not sought to suggest that the mother's behaviour in this regard is other than a matter for serious concern. There was however a conflict of professional opinion within the local authority as to what had motivated the mother to behave in such a way: one view was that the mother was simply being "vindictive", another view was that this was a fresh manifestation of over-anxiety which, were the mother caring for E, could have morphed into physical risk to E as had occurred when the epi-pen had been used inappropriately.
- To my mind, absent updating expert assessment of the mother by either a psychologist or psychiatrist, I cannot see how it was felt possible to determine which of the alternatives was the most likely.
- In addition to her behaviour in relation to E's placement at the foster carers, the mother insisted that the failure to allow E to return to her care was a result of a racist conspiracy. The judge considered this allegation with care and unhesitatingly rejected it. Ms Branigan sensibly does not seek to go behind that finding. It is worrying, showing as it does a lack of insight into the concerns held by the local authority.
- It is in these circumstances that the matter came on for trial.
- It was agreed at trial that neither party would seek to go behind the bare findings contained within the threshold although, as was observed by Lord Justice McCombe during the course of the appeal hearing, the children's guardian appeared in her written analysis to do just that. Ms Habel on behalf of the local authority told the court that, whilst the original medical and paediatric evidence was before the court, because of the threshold agreement, no reference was made to the historic evidence.
- This may explain what, to me, appears to be a significant gap in the judge's judgment. In the judgment one sees a reference to the use of the epi-pen in the threshold and later in the judgment of E using Makaton and being developmentally delayed (Makaton is a system designed to help hearing people with learning or communication difficulties by the use of signs and symbols together with speech).
- However, nowhere in the judgment does one get any sort of insight into or pen portrait of E and her difficulties, either before being received into care or afterwards; by way of example, it seems that it was only after E came into care that it was discovered she had sleep apnoea and required her tonsils and adenoids to be removed with consequential significant beneficial effects on her sleeping.
- There is no recent paediatrician's report and all that was available to the court was the careful report submitted by Loz Foskett a play therapist who is part of a BRS, a specialist team who provide play therapy and therapeutic assessments, foster carer support and post-adoption support.
- At Appendix 2 of Ms Foskett's comprehensive report is the local authority's chronology. From out of that can be teased certain important information about E; for example, that as of 15 April 2015 (that is to say, shortly before she was received into care) her allergies were categorised as "severe". Further, that E was born with a tongue tie resulting in her having a speech and language delay. The chronology records the gathering concerns which ultimately led to the FII investigation. What cannot be seen from any of statements and, therefore is not reflected in the judge's judgment, is an understanding of the challenges (if any) E's early life difficulties presented to the mother as a single carer but, more importantly for the purposes of an evaluation as to whether or not a placement order can be made, an up to date picture of E, including her current state of allergies and most particularly the extent of her development delay and speech difficulties both now and anticipated in the future.
- What can be gathered from the relative paucity of information is that it was felt necessary to place E in a therapeutic placement on her reception into care and that there are still concerns over what is described as E's (in)ability to "self-regulate her emotions".
- As part of her assessment Ms Foskett viewed a recorded contact session which had taken place between E and her mother as long ago as July 2016. Ms Foskett concluded that E's behaviours showed her to have complex emotional needs and some attachment difficulties. She concluded:
"In her current placement her needs are now being well met, however the delay in her development due to her early life experiences and neglect may prevent her, in the long term from progressing at the same level as her peers and some of her behaviours such as her clinginess and separation difficulties suggest she may have developed negative internal working model which will have an impact on her future relationships."
- Ms Foskett was of the view that long term carers would require in-depth training in therapeutic parenting prior to placement and continued support throughout, with them needing to recognise the need for E to access ongoing therapeutic support as required.
- If E were to return to the care of her mother, Ms Foskett was of the opinion that she would need to understand the impact E's early life experience had had upon her, and to accept and support her need for "emotional recovery".
- Pulling these snippets of information together, it can be seen that the child in respect of which the local authority sought a placement order was a black Zimbabwean girl of five. She had issues which would make her, to some extent, challenging to care for in the form of severe allergies and speech and development delay, and some behavioural difficulties. In addition, she has attachment difficulties of sufficient severity so as to necessitate, it was said, long term carers requiring in-depth training in therapeutic parenting.
- None of this is recorded in the judgment and no evidence was put before the court as to the effect this bundle of difficulties would have on the family-finding process beyond an assertion by the social worker that "there are reasonable prospects of a successful adoptive placement being found"; even that bland assertion was presented to the court without any likely timescales.
- The court was told that the former practice of an adoption social worker attending at court in order to give the judge a detailed, evidence-based and realistic picture of the prospects of finding an adoptive placement for a child who would surely be regarded as "hard to place" together with the likely timescales for finding such a placement, has been discontinued. In the present case, this court was told that the social worker had spoken with the adoption social worker who had done a "blind search" on a database by reference to age, gender and ethnicity and on that basis had concluded that there was a "reasonable prospect of finding an adoptive placement" although no timescales were proffered.
- The judge having set out the law categorised the case in the following way:
"... There are some cases which come before the courts, in the family courts in public law cases, where something very specific and serious has happened to a child, for example a serious inflicted injury, or where the parents have very serious and obvious personal problems, for example where there are serious substance abusers or have long established mental health issues or criminal convictions for violent behaviour or something else. The present case does not fall into this category. The allegations are of a different nature, and are more subtle and perhaps harder to pin down. Nonetheless the legal tests I've set out above and in particular the principle of paramountcy in the child's welfare still apply.
 It is right and proper for me to acknowledge that the mother and RR have many positive qualities and features. They are both intelligent and educated and have good job qualifications. They are both active Christian believers who attend church regularly. RR has good well paid employment, and in different circumstances the mother might well have the same. They are not aggressive or violent in character. Indeed they struck me, both, as generally very soft spoken. They are not substance abusers. They have no criminal convictions relevant to my deliberations. They own a house and they have savings from which their mortgage could be completely paid off. "
- The judge then went on to pose the question "So why is it, I have to ask myself, that a range of professionals here have unanimously assessed the mother and RR in so negative a way?"
- The judge went on to deal with a number of issues: for example he found that the local authority had not in any time or in any way been engaged in conscious or subconscious act of racism  and that it had not been established that any of the local authority witnesses had approached the case on the basis that the problems that existed in 2015 were far more serious than that which was ultimately contained in the March 2016 agreed threshold document. The judge made a number of other significant findings:
i) That the mother did not "in her heart" accept that there was sufficient evidence to cross the threshold. 
ii) That the mother's behaviour in relation to the so called unexplained injuries was "a manifestation, in my view, of the reassertions of her overprotective and misinterpretation which had been indentified in the original March 2016".
iii) That in the event of rehabilitation RR would be likely to defer to the mother on matters relating to E's upbringing. The judge concluded that RR had neither the strength of character nor the knowledge and experience of children and it's hard to see him as a protective factor.
iv) That whilst the contact notes identified many positive aspects to contact, in the judge's view an overall assessment of them undermined the proposition advanced by counsel that the contact notes supported the case that "all was well" between the mother and E. The judge was satisfied that the local authority witnesses were "without exception appropriately fair, well considered, convincing and reliable"  and that "the guardian was a compelling witness and I have no doubt that I can attach considerable weight to her evidence".
- It was against the backdrop of these findings, only briefly summarised here, but dealt with with care and at length in the judgment, that the judge moved on to what he termed the "holistic evaluation of the options open to the court" . The judge in embarking on this task referred to the Re B-S analysis done by the local authority social worker and the guardian in their respective reports.
- The judge then set out over three paragraphs what, without undermining the importance of any of the factors set out, might be described as the boilerplate list of what are often regarded as the recognised, generic pros and cons respectively of adoption, long-term fostering and rehabilitation.
- The judge picked out certain matters from the welfare checklist, in particular, E's need for a "forever home with carers with home she can have a secure attachment". The judge having quoted Ms Foskett's report to that effect went on to say "it seems to me that those aims can best be met in an adoptive placement".
- The judge went on at  to consider the risk of harm which I deal with separately later in this judgment. The third matter of particular importance identified by the judge was, unsurprisingly, delay. The judge having identified those particular features concluded:
" In my view, all of those factors strongly outweigh the benefits of the potential for E having a continuing relationship with her birth family, in particular her mother and RR throughout her life. I think E at the age of four is really too young to have any wishes or feelings or at least any wishes or feelings to which the court should attach significant weight."
The judge then went on to approve the care plan having accepted that there was a reasonable prospect of finding an adoptive placement.
Grounds of Appeal
- Grounds 1 and 2 of the appeal lead into each other. By Ground 1 it is said that the judge failed to engage with the substance of the welfare checklist and carry out an analysis which, it is said, the case warranted in view of the fact the category of harm was, on the judge's own account, "difficult to pin down".
- Ms Branigan acknowledged that the court does not need to highlight each and every factor in the checklist and it is clear that the judge was aware that that is the case and specifically referred to the welfare checklist. Ms Branigan submits however that the issue of harm requires consideration under s.1 (3)(e) Children Act 1989 and s.1 (4)(e) Adoption and Children Act 2002, that is to say, consideration of the harm within the meaning of the Children Act 1989 which E has suffered or is at risk of suffering. This factor should she submits have been afforded weight and consideration by way of clear analysis to enable it to be translated (for the purposes of the parties clearly understanding the reasons for the ultimate decision) into its place within the subsequent proportionality analysis.
- This in turn Ms Branigan says feeds into the Ground 2 which is that (i) the learned judge failed adequate to undertake a proper proportionality analysis in any event but that (ii) the error in the welfare analysis resulting in his failure adequately to identify the evidential basis for his assertion that E was at risk of emotional and physical harm in the care of her mother, inevitably had an adverse and detrimental effect upon the proportionality assessment which the court was bound to undertake and so on the ultimate decision to be made.
- Ms Branigan submits that where the concerns are, as here, difficult to pin down, and the child has complex needs, it is particularly important for the judge to engage adequately in the welfare analysis and to highlight the parts that are relevant to the issues so that the parties can understand the reasons for the judge's decision.
- Ms Branigan further submits that in the context of a case where the local authority proposes a radical change in direction as was done in this case, from potential family placement to adoption, an option recognised as one of last resort requiring a high level of justification, the analysis of actual harm or risk of harm is brought into particularly sharp focus.
Ground 1: failure adequately to engage with the substance of the welfare checklist
(a) Harm :
- Section 1(4)(e) Adoption and Children Act 2002 requires the court to have regard to "any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering" Ms Branigan submits that the court failed to do so.
- The case having been put in this way I turn to look at the evidence and findings which are capable of supporting the judge's finding that E would be at risk of physical and emotional harm in her mother's care.
- The original, fact-specific, basis from which the concern in relation to physical harm to E emanated, is taken from the threshold; in essence the mother's overprotective behaviour on two occasions having inappropriately used the epi-pen. There are no allegations of any other form of physical harm caused by the mother to E whilst in her care or during periods when she was in foster care or contact. (Although it had been suggested that the mother's failure promptly to consent to E receiving her MMR could be regarded as abusive, that could not without proper consideration have been regarded as an additional instance of harm).
- The absence of an overall picture of E means that no consideration was given as to whether the use of the epi-pen should be put into context by reference to the fact that E has now (after her reception into care) been diagnosed with sleep apnoea and had her tonsils and adenoids removed. Further the evidence was that, generally, the mother's overall presentation is not one of someone overanxious and that anxiety does not appear to impact upon her day to day functioning. The mother took the steps to address the anxiety issues required by the working agreement, the benefit or otherwise of this therapy has not been the subject of expert assessment.
- The issue of physical harm is touched upon by the judge in connection with the allegations by the mother of "unexplained injuries" whilst she was in foster care. The judge agreed with the guardian's view that this was an illustration of anxiety/misattunement. Ms Branigan submits, and it appears to be the case, that in categorising this as 'anxiety driven' or a 're-emergence of her anxiety', the judge seems to link this to a risk of the mother inappropriately administering medicine in the future and thus causing physical harm to E in the future. This led to the judge concluding:
"Whilst we cannot know for sure how these matters would precisely manifest themselves in the future if E should be living back in her mother's care, there is on the strength of these matters significant risk that they would manifest themselves in some way and in something which might cause physical harm, the inappropriate administration of medication or emotional harm, for example in having freedoms restricted. Those were examples given by the guardian, which I think are realistic fears as to what might happen in those circumstances."
- And then at :
"Risk of harm
It seems to me, as I have already assessed on the evidence, that there are risks of harm to E if she were to be returned to her care, the mother's lack of attunement with E's needs, her overprotection, her tendency to misinterpret situations and her lack of warmth. All these matters present significant risk of both physical harm and emotional harm in the future by virtue of how mother may react to a variety of situations in the years ahead. E has a need for a warm relationship with a carer, and I accept the evidence that this is not the case with the mother. Nor is there evidence that it is likely to change in the foreseeable future."
- Ms Branigan submits that the judge fails to deal adequately with the risk of physical harm and failed to provide a cohesive explanation by reference to the evidence. The judge appears to make his finding Ms Branigan says, based largely on the inappropriate use of the epi-pen and the presumption that the so called unexplained injuries were symptomatic of over-anxiety on the mother's part. This then turned into a finding that E was at risk of significant physical harm in the care of her mother. The court's attention was drawn to a psychiatric assessment of mother dated 22 October 2015 by Dr Paula Adshead. She had concluded that the mother was not currently suffering from a mental disorder and said:
"I wonder if her focus on E's symptoms may be an expression of her own anxiety… I take the view that there is evidence that the mother has exaggerated the severity of E's problems. I think most likely that this is a manifestation of her anxiety… The mother's general history and presentation does not have any of the features known to be associated with increased risk of harm to others. She is not generally antisocial nor does she have any convictions for violence; she does not abuse drugs, nor does she have major mental illness with paranoid features."
- For my part I accept the submission of Ms Branigan that the serious finding that this mother presents a significant risk of physical harm to E is inadequately analysed and based on the slimmest of evidence. The judge was in a very difficult situation; it would appear that the 2015 psychiatric report was within the proceedings but was effectively sidelined as a consequence of the agreement between the parties in relation to the threshold evidence. Further he had no evidence to help him as to the mother's present levels of anxiety. The finding made by the judge against this mother goes far further than the threshold document upon which the care order was made. No longer is it said that the mother was overprotective and administered the epi-pen inappropriately on two occasions, now it is said that she presents as a significant risk of physical harm to a child in her care. Not only has such a finding profound implications in relation to E, but also for the mother and RR in the event that she and RR should at some time in the future wish to have a child of their own.
- In relation to emotional harm, the judge's finding centred around what is said to be the mother's lack of empathy with and attachment difficulty with E. I have no doubt that there are legitimate and honestly-held concerns in this respect. In this regard the judge largely relied on the evidence of Ms Foskett, a witness who had had only the most limited contact with the mother. Despite all the various assessments conducted by the local authority, I see nowhere an assessment of attachment between the mother and her child based on expert observation of them together by someone who has access to (and feeds into their assessment) detailed information in relation to issues which may impact upon the attachment whether it be the mother's over-anxiety, E's developmental delay and change of carers, or the long period of time that mother and child have been separated.
(b) Child's characteristics
- S.1 (4)(d) Adoption and Children Act 2002 requires the court to consider "the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant".
- The judge makes no specific mention of this item in the welfare checklist and does not refer to "any of the child's characteristics which the court or agency considers relevant". In my judgment this was an important omission because, as referred above, the judge did not put together the information relating to E's particular difficulties and importantly, of the necessity in the opinion of Ms Foskett of a significant amount of work being undertaken with prospective carers. Only by having at the forefront of its mind a depiction of the child whose future depends on the outcome of the case, would a court be able thereafter to factor in when moving to an evaluation of each of the options available to the court the difficulty or otherwise in finding an adoptive placement for E against a backdrop of realistic timescales.
- I quite accept that in these days of strained resources, it cannot be expected that an adoption social worker should routinely attend court. I also understand that there can be no specific "family finding" until such time as a placement order has been made. Notwithstanding this, with respect to the judge, I do not agree that the enquiries made described by the judge as "limited but appropriate" were adequate in the circumstances of this case.
- This court is aware from its combined experience, that considerable information can be gleaned as to the likely availability at any one time of prospective adopters over the country together with a prospective timescale, without the necessity of revealing the identity of the child. On the face of it E could well be a challenging child to place: she is reaching the higher end for placement even for a little girl. She has significant cultural needs as a black Zimbabwean child, she has physical problems which, whilst not of the most serious, cannot be ignored, together with speech and developmental delay. She has potential attachment difficulties, the latter surely a feature likely to impact upon the ease of finding her a permanent substitute family away from her mother.
- In a case of this kind, the court will need the best available evidence about the likelihood of identifying suitable adopters and the length of time that should be devoted to the search before alternatives are considered. More often than not, the allocated social worker will be able to give this evidence after careful discussion with the social worker who would be responsible for the family finding, but there may still be cases where direct evidence from the family finder will be required. Regardless of whether this was such a case, as I say above, I do not consider the evidence before the judge to have been sufficient to allow him securely to undertake his balancing of the options.
- It follows that in my judgment that Ground 1 must succeed and the appeal be allowed. In my judgment the judge fell into error in that he failed to highlight and sufficiently to analyse these two key aspects of the welfare checklist in his global consideration.
- In this by no means easy case, one difficulty for the judge, faced with largely unanimous professional advice, was to tease out what was the real extent of the feared harm. I repeat that it is well established (for example: Re G (Children)  2 FLR 629 HL) that it is neither necessary nor appropriate for a judge slavishly to rehearse every factor set out in the checklists. What is necessary is that important, critical (or even decisive) factors within those checklists are adequately identified and analysed so that it can be seen what part they have played in the overall decision-making process. This of particular importance, as noted in Re G, in cases that are difficult or finely balanced.
- The word proportionality is much used in the context of applications for placement or adoption order. In reality it is a cross-check by the court that the seriousness of the order it is considering is a justifiable response to the seriousness of the problem that exists.
- In many cases this exercise can add little or nothing to the conventional welfare assessment, but there will be cases such, as the present, where the harm is not so easy to evaluate and where the cross-check is of particular importance. In my judgment, notwithstanding the judge's care in listening to the evidence and making findings of fact, he failed thereafter to step back and conduct a clear analysis, having pulled together the totality of the evidence before the court. This left the parties, in this difficult and finely balanced case, without a proper understanding how the positives enumerated by the judge at the beginning of his judgment were balanced against the risks of harm on the other.
- In my view the judge's ability to carry out such a task was compromised, not only (as I find) by the problems that I have identified in respect of the analysis of risk referred to above, but also by the limited information about E herself, which in turn feeds into the sparse evidence in respect of the prospects of placing this child with an adoptive family within her timescales.
- In my judgment Ground 2 also succeeds and it was for these reasons that the appeal was allowed on both grounds and the matter remitted for rehearing.
- I should make it absolutely clear that in reaching the conclusion I have, I am not in any way minimising the seriousness with which significant emotional harm should be regarded when it has been proved. Emotional harm can be devastating for a child, impacting upon every aspect of his or her life in the future, affecting not only his or her own development and mental well-being, but upon their ability to create and maintain healthy relationships as adults.
- It follows that nothing in these reasons should be taken as giving any indication as to the ultimate outcome of the case.
- I am grateful to Mrs Justice Roberts who, as the FDLJ of the relevant Circuit, has already had the matter in for urgent directions in order to ensure that the inevitable delay in making final decisions as to E's future consequent upon this court's order, is as short as possible.
- Finally, we have been called upon to determine the issue of costs. Following her appeal being allowed, MR has applied for her appeal costs (approaching £20,000 in view of counsel's fees) to be paid by the local authority. The parties exchanged detailed submissions on the issue while this judgment was in preparation: I consider that they cover the matter fully and are unaffected by the contents of the judgment.
- Essentially, MR argues that her appeal has succeeded, that she is not eligible for legal aid, and that she and her husband can very ill afford expenditure on this scale, added to the roughly equal costs incurred at the trial, particularly as they now face the further costs of the rehearing. It is said that hardship will be caused, though no particulars are given beyond the undoubted fact that the family is of modest means. She also says that it was unreasonable for the local authority to have defended the appeal in the way that it did when the decision has been found to have been incorrect. Alternatively, if an order for costs is not made now, she asks that the issue be decide by the judge conducting the rehearing, who will know whether E will be returning to her mother's care, and whether hardship would be caused to her by the scale of unrecovered costs.
- The local authority resists such an order, relying on the decisions of the Supreme Court in Re T (Costs: Care Proceedings)  UKSC 36 and Re S (A Child )(Costs: Care Proceedings)  UKSC 20. It argues that it cannot be said to be unreasonable for it to have defended the appeal and that it too has many calls on its stretched resources.
- The parties agree that as this appeal arises from family proceedings, there is no presumption in favour of the successful party. The court's must have regard to all the circumstances and to the matters set out in CPR 44.2(4) and (5). The manner in which this power should normally be exercised is considered in the two cases cited above, which are of course binding on this court.
- I have considerable sympathy with the position of MR, who is not eligible for legal aid and who has incurred such substantial costs in seeking to have her child returned to her. However, it is not possible to say that the local authority has been unreasonable in defending the judge's decision, it being a decision that was in line with all professional advice and was supported by the children's guardian. Unfortunately, as was said in Re T by Lord Phillips at , justice cannot demand that any deficiency in legal aid funding should be made up out of the funds of the local authority.
- I have considered whether a decision on the application should be postponed until after the rehearing. Had there been a clear case of documented financial hardship and factors that suggested unreasonableness on the part of the local authority, a postponement of the decision might be justified. But in my judgment, neither of these indicators is strong enough to justify that unusual course.
- For these reasons, I would make no order for costs in relation to this appeal.
Lord Justice Peter Jackson:
- I agree.
Lord Justice McCombe:
- I also agree.
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