The Court of Appeal decision in Re Y (A child) 2013
This was actually, I think the first appeal about Placement Orders post Re B-S, it has just been beaten to the published judgment case by all of the others. Anyway, in this one, the Court of Appeal determined that the judgment was deficient in the sort of rigorous analysis that is now required (notwithstanding that not all of the authorities that established the need for such analysis having existed at the time the judgment was made).
The Court of Appeal were very critical of the Local Authority final evidence.
“In upholding the criticism made of the judgment as to inadequate identification of risk and consequent evaluation of likelihood of that risk in subsequent analysis of measures which mitigate that risk, that is articulation of the proportionality of the order sought and subsequently made, the judge was not assisted by the dearth of relevant evidence which should have supplied, in particular by the local authority. Relevant evidence in this respect is not and should not be restricted to that supportive of the Local Authority’s preferred outcome.”
(re-emphasising, if such emphasis were needed, that a B-S compliant final statement analysising the pros and cons of each potential final option is essential)
But this bit is a development from the multitude of other Placement Orders sent back for re-hearing.
(4) I consider the case appears to have been hijacked by the issue of the mother’s dishonesty. Much of the local authority’s evidence is devoted to it. The Children’s Guardian adopts much the same perspective. It cannot be the sole issue in a case devoid of context. There was very little attention given to context in this case. No analysis appears to have been made by any of the professionals as to why the mother’s particular lies created the likelihood of significant harm to these children and what weight should reasonably be afforded to the fact of her deceit in the overall balance.
(5) This is not a case which is remitted for re-hearing merely to correct a procedural defect. The existing evidence plainly is inadequate for the purpose of the task of the judge who will re-hear the case at first instance in the light of recent authorities.
[This is of course mildly ironic, since the case that launched a thousand appeals in relation to plans for adoption, Re B, is almost entirely about the dishonesty of the parents and the disconnection between that level of dishonesty and firm cogent reasons as to why and how that dishonesty would harm the child. It is also worth bearing in mind that the Supreme Court were 4-1 in favour of the Placement Order, notwithstanding that it was one of the flimsiest thresholds I’ve ever encountered]