It isn’t Re JB, it is Re C

The Court of Appeal case I talked about at the weekend, which decided that the original Judge had not been wrong in making a Placement Order (and thus showing that the Court of Appeal aren’t just going to say “no” to every single Placement Order) is now out on Bailli and is Re C (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1257.html

The predominant challenge to the Placement Order, both at trial and in the appeal came from the maternal grandmother, EB, who had sought a Special Guardianship Order instead. She had been assessed by the LA unsuccessfully but was supported by an Independent Social Worker.

• The judge held ([70]) that there were “a number of very important points to be made in [EB’s] favour”. She was closely related to J, loved him and wanted the best for him. The judge also accepted that EB now appreciated the concerns of the local authority, even though she had not done so fully in the past. He considered this to be a point to her credit. EB also had important positive qualities as a carer, namely (a) her intelligence and resourcefulness (despite her disability, EB held down an important and responsible job), (b) a demonstrated commitment to the care of J (c) the ability to display patience with J and deal with him in a quiet and calm manner and (d) the ability to listen to advice.
• However he went on to make five specific findings, on which he subsequently relied, as to concerns about EB’s suitability. These were:
  

  i) He doubted ([72]) EB’s ability to deal with the mother. He considered that if the mother had contact with J twice a week as proposed, it would be “confusing” for J. He considered that the very fact of the proposal for contact showed that the family and EB in particular underestimated the likelihood of difficulty with the mother.

  ii) Although resourceful, as a single carer with a disability and work and financial commitments, he had real doubts about EB’s ability to manage.

  iii) EB would need a certain amount of help, for which the family would be the first port of call. The mother still had quite a bit of growing up to do. There were conflicts from time to time and likely to be conflicts in the future.

  iv) He was concerned about EB’s relationship with J. After his birth, there had been a gap in contact between Christmas 2011 and July 2012. He did not attribute any blame to EB for this. Although EB and the mother were in the process of forming a relationship, there was still some way to go. He shared CG’s concern about a recent incident when J was taken to EB’s home and appeared to be upset.

  v) Finally the Judge pointed to what he described as a “lesser concern”. He thought there was a potential source of a problem if the father was to seek contact with J. The family had expressed what he described as “not a positive attitude” to the father. The judge later said that his decision was primarily based on the first four of the concerns.

   

• Having considered these positive and negative factors in relation to EB, the judge went on to reject three matters which had been raised in relation to EB:
  

  i) A suggested lack of emotional warmth from EB towards J;

  ii) A suggestion that her motivation for seeking guardianship arose from feelings of guilt

  iii) An incident involving EB’s use of a knife in 2007 in a wholly different situation.

   

• Having considered these matters the judge expressed his conclusions about EB at [80] as follows:
  

  “What I have to do is to weigh up all the evidence and points that I have mentioned and look at what is in [J’s] best interest and decide what I consider to be reflective of his welfare. The conclusion I have come to in relation to [EB] is that the concerns significantly outweigh the advantages. I agree with the guardian that [J] does need a settled and secure home now. I am not satisfied that it would be attainable with [EB]. I agree with the local authority and the guardian as to [J’s] welfare and what is the best way forward in relation to that and I disagree with the independent social worker Gretchen Precey

The Court acknowledged that the Judge had not carried out the sort of Re B-S or Re G style balancing exercise, holistically comparing the relative merits of each of the options against one another, rather deciding the case in a linear fashion by dispensing with the mother, then grandmother and thus leaving adoption as the only option ‘left on the table’ .   We know that the Court of Appeal have recently determined that this is wrong and that many (I count seven) Placement Orders have been refused or sent back for re-hearing on that basis.

The Court identify that the structure of the judgment is badly flawed

• I have found this a troubling case. As a matter of structure the judge has made it difficult for readers of the judgment to see that he has in fact conducted a balancing exercise in order to make the crucial choice between a home with EB or adoption by strangers. The judgment is ‘linear’ in form, despite the fact that, at paragraph 63, the judge identifies
  

  ‘one alternative here is the local authority’s care plan which is clearly in this case a realistic and achievable plan but the question is whether it is in J’s best interest. To decide that I have to look at the alternatives.’

  What then follows is the section of the judgment (summarised at paragraph s 8 to 14 above) in which the judge looks at each of the family members, including EB, before concluding that she is unable to offer the stable and settled home that J needs. That sequence is not, on its face, a consideration of what was the true alternative choice before the court, namely one between adoption or placement with EB.

   

• Further, where the court is seized of both an application for a care order and an application for a placement for adoption order, I would question the wisdom, when making a care order in the middle of the process of evaluating the ultimate question of whether or not a placement for adoption order is to be made, of ‘approving a care plan for adoption’ by reference only to the CA 1989, s 1 welfare provisions. In common with the practice of many family judges, that was the course taken by the judge in the present case. It is, however, a practice which may inadvertently lead the court away from engaging with a proper, holistic evaluation of the central welfare question and, where placement for adoption is an issue, doing so within the structure of ACA 2002, s 1 rather than CA 1989, s 1. Any judge, who is aware that (either at the current hearing or at a hearing shortly thereafter) he or she is going to be considering whether or not to make a placement for adoption order, would be wise only to approve a care plan for adoption where such a plan seems likely to meet the welfare requirements of ACA 2002, s1 and s 52.
• By way of example, it is a consequence of the linear structure in the present judgment that EB is ruled out at a stage where the judge is solely considering the welfare checklist in CA 1989, s 1(3). He then goes on to make the care order and to approve the care plan for adoption (paragraph 85). It is only after that point that the judge, for the first time, makes reference to ACA 2002, s 1(2) and to the enhanced welfare checklist in ACA 2002, s 1(4) with its focus upon the whole life nature of an adoption decision.

• The CA 1989 welfare checklist must, by reason of CA 1989, s 1(4)(b), be used when the court is considering making a care order under s 31. A linear judgment, which unnecessarily compartmentalises the decision making into discrete and separate stages (‘care order’ and only then ‘adoption’), with the 1989 Act provisions alone being used to approve a plan for adoption, in some cases may prevent the evaluation of what is ultimately the one issue in the case, the choice between family placement or adoption, as a whole and for that evaluation to be undertaken with the tailor-made, adoption focussed, welfare checklist in ACA 2002, s 1 at the forefront of the judicial mind

However, it seemed that the Court of Appeal did not feel that the decision itself was the wrong one, and thus find themselves between a rock and a hard place. On the one hand, the principles of Re B-S haven’t been adhered to, on the other, the final outcome appeared right to the Court of Appeal. Should they send it back for re-hearing because of procedural flaws, or take a pragmatic approach that despite those flaws the right decision was made?  (Arguably, how CAN the right decision have been made if the process was so flawed? )

The Court of Appeal thus had to do some rowing  (both in the debating sense of the word and the moving oars in a boat metaphor sense) to help retrieve the position.

• In the present case, as I have described, the judge has made it difficult to see that he has in fact confronted the essential choice between a placement with EB or adoption, and done so in the context of ACA 2002, s 1. Despite the unhelpful structure of the judgment, however, I do consider that the judge did have the relevant long-term factors in mind:
  

  a) Having cited the four/five central adverse findings that he made against EB as a carer (see paragraph 13 above) his conclusion that a permanent, settled and secure home would not be attainable with her is justified and, in my view, not susceptible to being overturned on appeal;

  b) The factors relied upon to rule EB out are long-term in nature and, I am satisfied, that despite the use of the CA 1989, s 1 checklist at that stage of the judgment, the same findings would have led to the same decision had they been evaluated under ACA 2002, s 1;

  c) The judge was plainly focussed on long-term, whole life planning and his decision that EB could not provide a sufficiently stable and settled home was made in the context of there being only one other alternative, namely adoption;

  d) The judge clearly had the provisions of ACA 2002, s 1 and s 52 in his contemplation and paragraphs 90 and 91 (see paragraph 17 above) indicate that he had those factors in mind, he considered them to be important, but nevertheless he considered that J’s welfare required adoption. I should indicate that for some reason the Note of Judgment that was before me when I granted permission to appeal did not contain any reference to the content of these two key paragraphs;

  e) In terms of proportionality, at paragraph 84 (see paragraph 16 above) the judge indicated that he was fully aware that it is hard to imagine a greater degree of interference in the right to family life of J and his family, but, for the reasons that he had given, namely his adverse conclusions as to EB’s ability to provide a long-term secure home, he considered that the course chosen was justified and proportionate as being in the child’s best interests.

• In the circumstances, and despite the critical observations that I have felt driven to make as to the structure of the judgment, I am satisfied that the judge did engage sufficiently with the core, long-term welfare decision in this case and, despite understanding all that EB undoubtedly has to offer J, I consider that the adverse findings that the judge made against her must stand. In the light of those findings the judge’s decision was proportionate and, in the context of J’s welfare, is not ‘wrong’. As a result of those conclusions, I would dismiss this appeal.

I see a future of Local Authorities waving this decision and parents waving Re B-S.  The tranche of post Re B-S appeals is going to be vital in understanding whether the Court of Appeal requires perfection in terms of the holistic balancing exercise, or whether as here if the Court of Appeal can look at the judgment and deduce that a holisitic exercise would have achieved the same outcome the Judge was not wrong.

I am slightly surprised that the Court of Appeal didn’t lay down a marker that this case was considered exceptional because not all of the key judgments had been available to the trial judge at the time of making his decision (although that didn’t prevent the other seven cases) and that for all cases where judgment was given post Re B-S, the expectation would be that any judgment that did not follow those principles would be likely to be wrong. Despite my surprise, the judgment DOES NOT DO that, and is thus arguably authority for the Court of Appeal looking beyond the mere structure of the judgment and into the facts of the case to see whether the decision itself appeared ‘wrong’