B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE MCFARLANE
LORD JUSTICE VOS
Miss Deirdre Fottrell QC (instructed by Goodman Ray) for the Appellant
Miss Daisy Hughes (instructed by Philcox Gray) for the First Respondent
Mr Nicholas O'Brien (instructed by Legal and Democratic Services, Rotherham Metropolitan Borough Council) for the Second Respondent
Hearing date: 19 February 2015
HTML VERSION OF JUDGMENT
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Lord Justice McFarlane :
- On 19th February 2015 we heard an appeal against the determinations made by His Honour Deputy Judge Barber sitting in the family court at Sheffield on 8th August 2014. On that occasion the judge made a care order and an order authorising the local authority to place a child for adoption with respect to young J, a boy born on 8th December 2013, and therefore some eight months old at the time of the hearing. At the conclusion of the appeal hearing we announced our decision which was to allow the appeal and set aside the substantive orders made by the judge. In this judgment I now set out my reasons for the conclusion.
- The appeal is brought by J's mother and supported by J's father. The grounds of appeal identify no fewer than eight significant areas in which it is said that the evaluation conducted by the judge as evidenced in the judgment that he gave was both inadequate and in error. In my view each of the appellant's criticisms, which were made with force and clarity on her behalf by Miss Deirdre Fottrell QC, and on behalf of the father by Miss Daisy Hughes, are valid. Regrettably, the judge's judgment represents a wholly inadequate evaluation of the important issues that fell for determination. In many respects it has proved impossible to detect the process of analysis undertaken by the judge. That this is so is, in one sense, wholly disastrous for the young child at the centre of the proceedings. He was entitled to have his future determined by a proper process which concluded in the Summer of 2014. Now, as a result of our decision, the whole case will need to be re-heard in a process which may come close to the first anniversary of the start of the hearing before the judge in June 2014.
- This is not, in my view, a finely balanced appeal. The judge's judgment is devoid of detail as to the substance of the three day oral hearing and the analysis of the evidence. As the matter is now to be re-heard, I will avoid any observations as to the merits of the case or such orders as might be made at the conclusion of the further hearing.
- J's mother was still only 16 years of age herself at the time of his birth. She had spent the majority of the time from the age of 13 in the care of the relevant local authority, Rotherham Metropolitan Borough Council, following the inability of her own family to provide care for her. She had been, we were told, a victim of sexual abuse whilst in the care of the local authority. At the time of the birth of her child she was entitled to support from the local authority in her own right under the "Leaving Care" duties arising under Children Act l989 (CA l989), s 23C. J's father is three years older than the mother. The parents, despite their relative youth, had been involved in a relationship with each other for a significant period prior to J's birth. J is their first and only child.
- Prior to J's birth, with the co-operation of the mother, it was arranged for her to go to live in a foster home that could accommodate both herself and the baby. That placement broke down through no fault of the mother's. She then went to live in a second mother and baby foster placement and it was into that home that she moved shortly after J's birth on 8th December 2014. That placement broke down in December 2013 when the mother left the foster home. Since that time J has continued to be looked after in foster care on his own.
- In the early part of 2014 the parents underwent a community based parenting assessment, the result of which was to recommend that J should not be placed in the care of his parents. The assessment, which is recorded in a substantial report dated 8th May 2014, identified a number of positives about the parents. This is not a case where features such as learning disability, addiction to Class A drugs or alcohol, mental health or concern over sexual matters feature at all. The negative outcome of the assessment, however, rested upon an apparent inability by the couple to demonstrate co-operation and motivation to engage fully in the assessment process, a difficulty that they had in accepting advice from the workers, evidence of stresses within their relationship and an inability to demonstrate "any significant insight into the concerns regarding their care of J". In addition there was concern over the father's admitted use of cannabis both at an early stage prior to J's birth and also in the period following J's removal from the mother's care. Finally, as I will discuss in more detail, the assessors identified possible evidence of domestic violence between the mother and the father.
- The social workers relied upon the parenting assessment in support of their opinion which was that rehabilitation of young J to the care of his parents was not a viable option. Other family members having been excluded as potential carers, the care plan preferred by the local authority was, therefore, one of adoption. In that regard they were supported by the recommendations of the Children's Guardian.
- In written statements filed prior to the hearing the parents contested a number of the key factual matters raised by the local authority.
- The judge heard oral evidence over the course of three days in the middle of June 2014. The case was then adjourned for written submissions to be filed and judgment was eventually given on 8th August 2014.
- The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment. Prior to embarking upon his summary of that material the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:
"I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application."
- Insofar as it goes, the judge's description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:
"Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child's right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?"
- Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.
- Before turning to what the judge did include within his judgment, it is important to highlight one significant matter to which he makes no reference at all. That is that the mother was herself still a child and was a young person for whom the local authority had had responsibility for a number of years. Other than referring to the mother as a young person at one stage in the judgment, her status and the responsibility owed to her by the local authority are not mentioned by the judge.
- The judge's approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he "rejects" or "accepts" one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge's quotations with regard to the parents' capacity are all drawn from the written report alone.
- Insofar as allegations of any violence are concerned four episodes were considered by the court:
i) In March 2013 the couple had an altercation following a night out on an occasion when they had both been drinking. This was prior to the mother becoming pregnant. The mother incurred a black eye and a bite mark to her face. The parents admitted these basic circumstances and accepted that the father must have been responsible for the mother's injuries. The judge simply records the account without comment.
ii) On 1st March 2014 the police were called to the parents' property. The police log notes that some of the mother's clothes had been thrown out of the window of the property and that the mother initially complained that she had been assaulted.
iii) On 4th March 2014 the social worker made an unannounced visit and observed that the mother had bruising to her right eye. Initially the mother gave an account of being struck by a suitcase whilst she was lifting it out of the loft. Later she described having received the injury by being struck by someone's elbow on the dance floor of a club during a night out the previous week.
iv) On 8th April 2014, during an assessment session, the mother is recorded as having described occasions when the father had been controlling, for example cutting up her nicest clothes. The report states that she went on to say "when he was punching me everyone jumped in but when I was punching him no one did". In his judgment the judge reports that the mother denies giving this as an account of an actual event, but rather as an example of what other people might do. The judge simply states "well that explanation I frankly do not accept". He makes no finding as to the alleged assertion by the mother that the father had in the past cut up her clothing.
- With respect to these four matters the judge's findings are very limited. The pre-birth incident of violence is simply noted by him without further comment. The pair of reports relating to 1st and 4th March are dealt with by an extensive account drawn from the police log, followed by the judge observing "that is a clear example of what in my view is serious domestic abuse and a serious argument between these two who have lost control of themselves".
- With respect to 1st March, the judge records the father stating that he did not throw clothes out of the window but he had passed them to the mother. The judge concludes "well, that is clearly in conflict with the log from the police and I reject that explanation". The police log, however, which had been quoted by the judge some three paragraphs earlier recalls the third party who made contact with the police in these terms: "the caller states that the female appears to be having a domestic incident with a male/female, the female is throwing things out of the flat."
- With respect to the black eye seen three days later, which the local authority had sought to relate to the incident of 1st March, the judge simply makes no finding and, as Mr O'Brien, counsel for the local authority before this court, accepts the evidence must rest with the mother's account of being hit in the eye by a passing dancer's elbow.
- Moving on in the judgment the judge records in a short paragraph that the author of the parenting assessment gave oral evidence and highlighted the matters of concern. I quote verbatim from the judge's summary at paragraph 23:
"She put them in this order, domestic abuse first; (Mother) struggles to accept advice second; third that she did not get engaged in the assessment; and fourthly and most importantly she says she does not need advice."
- The judge goes on to find that the mother and baby foster placement broke down in December 2013 because the mother could not bear to be separated from the father and that she put her own needs to see him above the need to secure the safety and well-being of the baby. The judge records that in evidence the mother asserted that the local authority had agreed to her moving from the foster home and being away in Rotherham. The judge did not accept the mother's account, but gave no reasons for his conclusion.
- Finally, in terms of the factual matters underpinning the judge's decision, he returns, at paragraph 27, to the incident when police were called on 1st March. This again is the verbatim extract of the judge's analysis of this point:
"The incident of March 2014 was described by (mother) to (social worker) as being a stupid argument and that they argued over little things. It is far more than a silly little argument, it is a very serious incident in my judgment of domestic abuse and the potential that it has to cause harm not only to the adults but to their child."
- One aspect of the case at the final hearing was that the parents, albeit late in the day, sought an adjournment so that they could be placed with baby J in a residential assessment. A specific unit was identified which held itself out as being experienced in dealing with comparatively young parents. The judge rejected this proposal. Prior to doing so he rehearsed the advice given to him by the author of the community based parenting assessment to the effect that, as the mother could not sustain the placement in the mother and baby foster home, she could not sustain a full time residential assessment. The judge also recorded the opinion of the Children's Guardian to the effect that until therapy and counselling has been provided to the parents with respect to their own past experiences and their relationship, nothing would change. The Guardian advised that people who had been in care found a residential parenting assessment "very difficult". It was the Guardian's view that placement in a residential unit would "merely set them up to fail".
- The judge's conclusion on the application for a residential assessment is in these terms:
"35. As to the application for a residential assessment, in my judgment it would not work, it would not help me to make a decision in relation to the future of this child, it is a decision that I have to make, and that is whether this child would be safe with them in the community. I do not think a residential assessment would work in the first place for the reasons given by [the guardian] and [the social worker], and neither do I think it would assist me in reaching the conclusion I have to reach which is one of the child potentially living with the parents in the community. I also agree that residential assessment is far more intensive compared with the foster placement and the scrutiny that she was under at a foster care placement which broke down and which caused a breach of the contract of expectations and, to use [the guardian's] expression, I think to give them a 24/7 residential assessment would set them up to fail. In addition this case involves a baby who needs his future settling, the proceedings were commenced 8 months ago and further delay is proposed by the parents in their undergoing a residential assessment for a period of at least 3 months, leading to a further delay, if that assessment fails of about 6 months, therefore outwit[h] the protocol."
- The final component in the list of factors that were live issues before the judge is the question of what support could be afforded to this young couple in the community if they had baby J in their care. The judge records the author of the parenting assessment as advising that any support package put together by the local authority, even on a multi-agency basis, would fail because the parents had thus far not shown evidence of engagement with professionals and had failed to indicate a recognition of the problems that are seen to exist. The judge stated that he concurred with that view.
- The judge drew his conclusions together in the final three paragraphs of his judgment in the following terms. I begin this quotation halfway through paragraph 36, the earlier part of paragraph 36 having already been quoted by me at paragraph 11 above.
"…is it possible that the Local Authority could provide a package of support to maintain the child in the family? Unhappily the history of this case which I have just been going through tells me that the answer to this most firmly is no, no package of support can be provided which will work and I come back to what the Guardian said to me in evidence, that these parents are on a journey which at best is only just beginning. This child's right to a family life cannot be provided by these parents and there is no member of the extended family to step into the breach. The significant damage which would be occasioned to this child is in the same bracket as the damage which has been caused to both these two young parents, and in particular the mother, and that would be occasioned to the child were the child to be in the care of these parents. The threshold is proved and on the evidence I adopt paragraphs 1,2,3,4(a)(b)(c)(e)(f)(g) and (h) I therefore concur with the Local Authority's application, that there must be a Care order for the reasons that I have given.
37. The local authority seek a placement order and in this they are supported by the Guardian. I consider that the child's welfare throughout his life demands that he becomes a placed person. I also consider his human rights and the fact that he is entitled to his own forever family. Accordingly I make a placement order as requested and dispense with consent of the parents.
38. I pause there to remark about, to effectively state the obvious, that in recent times the Court of Appeal have made a variety of decisions which deal with the long-term welfare of a child once the adoption process has started. I am sure [counsel] will explain to the mother, and so will [counsel] explain to her Client what I am referring to, but at the moment my judgment is that this child needs to go along the process of adoption and I confirm the Local Authority's application has been granted, a Care Order and Placement Order."
- Finally it is necessary to consider the threshold criteria to which the judge makes reference in paragraph 36. The elements found proved by the judge are set out in a document which is attached to the judgment and is signed by the judge. It reads as follows:
1. The child, [J] has suffered and is likely to suffer significant harm and the likelihood of harm is attributable to the care likely to be given to him, if the order is not made, not being what it would be reasonable to expect a parent to give to him.
2. The local authority relies upon events occurring on or before 24 December 2013; that being the date on which it first intervened to protect the child (re M (Minor) (Care Order: Threshold Conditions)  2 AC 242).
3. The local authority further relies upon events occurring since 24 December 2013 which are capable of proving the state of affairs at the date of intervention (re G (Care Proceedings: Threshold Conditions)  2 FLR 1111).
4. The local authority relies upon the following facts:
a) (Mother) and (Father) have lacked positive parenting role models.
b) (Mother) and (Father) have not always been honest with professionals. For example:
i) During the course of the parenting assessment the first respondent was not initially honest about how she came to sustain a black eye; and
ii) The second respondent, initially, failed to disclose the extent of his cannabis misuse.
c) (Mother) and (Father) have failed to consistently engage with professionals and accept the support provided.
e) (Mother) and (Father) have shown a lack of understanding with to respect to domestic abuse and the impact this has on a child. Prior to the birth of (J) there was an incident whereby both parents injured each other. (Mother) hit (Father) with a shoe and (Father) bit (Mother). On 1 March 2014 the police were contacted by a member of the public with regards to an incident of domestic abuse between (Mother) and (Father).
f) (Mother) and (Father) lack appropriate positive support networks.
g) (Father) has a history of cannabis misuse. On 27 January 2013 he received a caution for possession of cannabis.
h) Throughout the assessment process (Mother) and (Father) have displayed emotional immaturity."
- The threshold findings are of note for a number of reasons. Firstly, the only specific factual matters referred to are the admitted incident 9 months prior to the child's birth where the mother sustained a bruise and a bite mark, the 1st March 2014 incident where clothes were thrown out of a window and a caution for possession of cannabis nearly a year prior to J's birth. The other matters relied upon (lack of parenting model, 'not always honest', fail to engage consistently/accept support and displaying emotional maturity) are in the most general terms. The 'findings' do not identify what significant harm the judge has found that 'the child [J] has suffered'; no such harm is found to be proved in the body of the judgment and it was common ground that J had been in foster care (albeit together with the mother for the first three weeks) throughout his life. Looking to the future, the type of significant harm that the judge finds that J is likely to suffer is not identified, save that the judge does hold (in paragraph 36) that the 'significant damage which would be occasioned to this child is in the same bracket as the damage which has been caused to both these two young parents, and in particular the mother.'
- The focus of Miss Fottrell QC's criticism of the judgment is her submission that the judge simply failed to identify and/or make findings of fact that would support a finding that the s 31 threshold criteria were established with respect to J. She goes on to argue that a consequence of the judge's failure to establish a bedrock of findings is that there is no basis upon which the necessary welfare and proportionality evaluation regarding the care plan can be undertaken. Separately, Miss Fottrell draws attention to the absence of any reference to the impact of adoption on this child or to any reference to the welfare checklists in either CA 1989, s 1 or ACA 2002, s 1 or to the test for dispensing with parental consent in ACA 2002, s 52.
- During her oral submissions, Miss Fottrell stressed that the s 31 threshold criteria had been contested by the parents and she questioned whether the limited facts as found by the judge could support a finding that the threshold was crossed in this case. More generally the appellant relies upon the absence of any reference to the parents' evidence, or indeed any of the oral evidence, to argue that the limited findings that were made are unsafe.
- In terms of the welfare analysis Miss Fottrell submits that the judgment is entirely devoid of any judicial analysis of the welfare options or the proportionality of a plan for adoption in this case. In so far as the judge relied upon the local authority analysis this, submits Miss Fottrell, was flawed, and in so far as the judge relies upon the guardian as providing a second opinion he was in error in that the guardian did not conduct his own analysis.
- On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father's evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child)  EWFC 11 in which, at paragraph 6, Sir James Munby P states:
"I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors)  EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?"
In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father's evidence to make good her submission that this judgment falls well short of what is required.
- Although cannabis use by the father is referred to in the threshold finding in general terms, Miss Hughes emphasises that the only evidence of cannabis use related to a period a year prior to J's birth and a later time well after J was in foster care. The father had apparently given evidence that he would never smoke cannabis around his child. Miss Hughes submits that in the light of the detail of the evidence of cannabis use, and in the light of the absence of any explanation by the judge to establish a link between that use and his finding that J was suffering or likely to suffer significant harm, any finding related to cannabis cannot have been used to establish the s 31 threshold in this case.
- For the local authority, Mr Nicholas O'Brien (who did not appear below) submits that this court can be satisfied that the judge engaged with the essence of the case. Whilst he accepts that the judgment is not ideal, it is nevertheless 'sufficient' and contains the essential ingredients necessary for there to have been a proper determination of the issues in the proceedings.
- Mr O'Brien submits that the choice facing the judge boiled down to two options: either to adjourn for a residential assessment or to make a care order and authorise placement for adoption. The judge's approach to the residential assessment application is entirely in accordance with settled law and practice and his decision as to adoption is certainly not 'wrong'.
- Regarding the s 31 threshold criteria, the local authority points to the fact that the parents made some concessions with the father conceding paragraphs 4(a), (b)(i), (d), (e) and (g) and the mother conceding 4(a), (d) and (e). It is, however, of note that these concessions are neither referred to in the judgment nor recorded in the court order. In addition the father's suggested concession as to (b)(i), which relates to the mother's honesty, sits oddly as a concession made by him, and their joint concession as to (d) relates to the only element in the threshold document which, for unstated reasons, the judge struck out. The concessions made under (e) and (g) relate to the pre-birth incident of assault, the 1st March incident and the father's admitted use of cannabis.
- During oral submissions, Mr O'Brien frankly accepted that there is little linkage in the local authority threshold document between the pleaded findings and the assertion that, in consequence, J has suffered and is likely to suffer significant harm. He argues, however, that such links are established within the parenting assessments which were endorsed and adopted by the judge.
- Mr O'Brien accepts, as he must, that the judgment contains no record of anything that occurred during the three day oral hearing, but he argues that if this is seen as a deficiency then it was for the parent's lawyers to ask the judge to supply further reasons.
- Unfortunately, due to a misunderstanding, the Children's Guardian was neither present nor represented at the oral hearing before this court. The solicitors previously instructed on behalf of the child had had notice of the hearing, but had apprehended that the child would be a respondent and had not, therefore, applied for Legal Aid. Having seen the appeal papers, the solicitors communicated to the court on the day prior to the appeal hearing that they had no instructions and were not able to take a position with respect to the appeal. No application to adjourn the appeal hearing was made on behalf of the child, or by any other party, in the light of the guardian's inability to take part in the appeal.
- I anticipate that the description that I have now given of the content and substance of the judgment will have gone a long way to explain the conclusion that I announced in paragraph 2 above to the effect that, most unfortunately, the judge's judgment represents a wholly inadequate evaluation of the important issues that fell for determination in this case.
- These proceedings concerned a very young couple who, from time to time, had behaved in an immature and irresponsible manner. It is hard to conceive of any young person who does not at some time fall short of the mark in that regard. The parents disputed some of the factual matters relied upon. In any event there was a need to evaluate whether those matters that were established (a) justified holding that the circumstances were sufficiently serious to meet the s 31 threshold criteria of significant harm, and, if so, (b) whether the plan for adoption was justified as the necessary and proportionate response to those circumstances.
- What was required was a careful and sophisticated analysis of the issues that were in play. Having heard oral evidence over the course of three days, it was incumbent upon the judge to offer an evaluation of that evidence. For the judge not to mention the oral hearing at all must beg the question why, if the oral material was not, in his view, relevant to the issues, the judge allowed the oral hearing to take that amount of time. Although Mr O'Brien is entirely correct to point to the normal requirement for those who seek to appeal on the basis of an insufficiency of reasons to go back to the judge and request that supplemental reasons be given, in this case I regard the judge's failure to give any reasoned evaluation at all to be such that no supplemental reasons could sufficiently fill the void in reasoning that exists.
- The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents' stance was not without merit.
- In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:
"It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority's concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J's exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father's] substance misuse. It is my professional opinion that many of the local authority's concerns relate to the lack of maturity of the couple."
In that paragraph 'Domestic Violence' must, even on the judge's findings, be confined to the assault a year prior to J's birth, clothes being thrown out of a window in March 2014 and the mother's reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father's admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.
- To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority's 'concerns', even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L  EWCC 877 (Fam):
"I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts."
- There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.
- Sir James Munby, as President of the Family Division, has offered his view upon the format and length of the 'threshold statement' that a local authority must file in support of any application under CA 1989, s 31 (View from the President's Chambers: the process of reform: the revised PLO and the local authority  Fam Law 680 (June 2013)) in which he states that 'the threshold statement is to be limited to no more than 2 pages' (original emphasis) and that 'it is not necessary for the court to find a mass of specific facts in order to arrive at a proper threshold finding' and, in answer to the question 'what does the court need?' he answers:
"It needs to know what the nature of the local authority case is; what the essential factual basis of the case is; what the evidence is upon which the local authority relies to establish its case; what the local authority is asking the court, and why."
Nothing that I have said concerning the threshold document in this case is intended in any way to contradict or alter the advice that the President has given on this topic and I would, indeed, go further and expressly welcome and endorse the importance that the President has attributed to the need for there to be linkage between the individual facts relied upon and the requirements of s 31 where, at paragraph 12 in Re A (above), he says:
"The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A+B+C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". May be. But how does this feed through to a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts." (emphasis in original)
- Miss Fottrell's submissions are sufficient to raise the concern that, in this case, on the material that we have been shown, if proper and focused scrutiny had been given to the underlying facts of this case they may have been insufficient to establish that J 'is likely to suffer significant harm' of one category or another in the care of his parents. I stress that I am not in any way expressing a concluded view; this issue will be a matter for the judge who now takes this case on. But I am clear that the question of whether this young, immature couple were likely to cause significant harm to their baby did require a far greater degree of analysis than it received from either the local authority or the judge in his judgment.
- It follows that I do not agree with Mr O'Brien's central submission that the only issue facing the judge was a choice between two options: residential assessment or adoption. The judge was also required actively to engage in determining whether the s 31 threshold was crossed with respect to J.
- If the threshold criteria are made out, any judge hearing this case would need to engage in a similarly thorough and clear analysis of the evidence to determine the welfare outcome. In this regard the question mark that I have raised as to the social work evaluation (paragraph 44 above) should have been at the forefront of the judicial mind; even on the facts relied upon by the local authority, was adoption the only option that would meet the requirements of the child's welfare?
- It is not a mandatory requirement for a highly experienced family judge to make express reference to the welfare provisions in CA 1989, s 1 or ACA 2002, s 1, or to the test for dispensing with parental consent in ACA 2002, s 52. In a case such as the present, however, where the circumstances necessitated detailed evaluation in order to determine whether the child's welfare required adoption, the judge's decision not to structure the analysis in his judgment within the helpful context of these statutory provisions makes it all the more difficult for those who read the judgment to have confidence that he has indeed undertaken the necessary balancing exercise before concluding that nothing other than adoption would meet young J's welfare needs.
- Finally, although the point was not apparently run before the judge as it was by Miss Fottrell before this court, for the judge not to refer to the fact that the mother was herself still a child in the care of the local authority both at the time of J's birth and at the time of the hearing was, in my view, a serious omission. It is well established that for interference by the state with the family life rights of a child and/or parent to be proportionate and necessary in terms of ECHR, Art 8, account must be taken of what support the state, in the form of the local authority, can give to maintain the child in the care of the parent(s). In the present case the issue went further as there was a statutory requirement upon the local authority to support the mother both prior to her 18th birthday and during the period thereafter.
- For all of the reasons that I have given, my clear conclusion is that the judicial analysis given to this case, as evidenced by the judgment, was, by a wide margin, wholly inadequate. In consequence the appeal has been allowed and the case must now be reheard in full by a different judge. We have made directions for an early case management hearing and all parties must be in no doubt that there is a very pressing need to complete the process of rehearing promptly so that the long-term plan for J, whatever that may be, can be properly determined.
Lord Justice Vos
- I agree with the judgment of McFarlane LJ and the judgment of Aikens LJ which I have had the opportunity of reading in draft. I have found this a rather shocking case, because there seems to me to have been an assumption made at an early stage by the Local Authority that adoption is the only course to be followed. That is simply the wrong approach. Adoption is the last resort, not the first. It is only appropriate when nothing else will do. For the reasons given by The President in Re A (a child)  EWFC 11, which Aikens LJ has most usefully summarised, it is not appropriate just because a judge or even society disagrees with or disapproves of aspects of the conduct of the parents. For very sound reasons, not least the article 8 rights of the parents and the child, statute and the courts have developed detailed and important safeguards and procedures that must be followed when adoption is in prospect. It is unfortunate indeed that almost every one of these protections has been flouted in this case.
- Despite the fact that harsh words have been spoken by the court in this case, I would wish, in common with McFarlane LJ, to emphasise that nothing I have said should be taken to pre-judge the outcome of the new process that must now be undertaken.
Lord Justice Aikens
- I agree with the judgment of McFarlane LJ. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child)  EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that "nothing else will do".
- The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:
i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that "nothing else will do", when having regard to the overriding requirements of the child's welfare.
ii) If the local authority's case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent "does not admit, recognise or acknowledge" that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern "has the significance attributed to it by the local authority".
iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great, or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged.
iv) The formulation of "Threshold" issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ("he appears to have lied" etc.)
v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, "justify the conclusion that the child has suffered or is at the risk of suffering significant harm" of the type asserted by the local authority. "The local authority's evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]".
vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child's welfare. The court must guard against "social engineering".
vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.
viii) In considering a local authority's application for a care order for adoption the judge must have regard to the "welfare checklist" in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child's welfare "throughout his life" in accordance with section 1(2) of the 2002 Act. In dispensing with the parents' consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent)  2 RLR 625.