As regular readers will know, we had been anticipating the Court of Appeal in Re B S to deal with issues of how appellant Courts were to tackle appeals in the light of the changes to the tests highlighted by the Supreme Court in Re B.
We hadn’t necessarily anticipated that the Court of Appeal would get under the bonnet of this issue before then, but to an extent, they have, in Re G (A child) 2013. The case really delves very carefully into an often overlooked aspect of the judicial decision-making – the welfare checklist.
The facts of the original case , determined by a District Judge (which was appealed, and then that appeal decision appealed to the Court of Appeal) aren’t really that important.
What is important is the Court of Appeal’s clear guidance as to how Judges in care proceedings are to tackle the task.
In broad terms, this is the order of events
- The Court must establish the facts and particularly to make findings on any relevant facts or disputed facts
- The Court must then evaluate whether on the basis of those facts, the section 31 threshold is crossed
- The Court should then apply the welfare checklist to the circumstances of the case
- If the case involves a plan of adoption, the Court should also apply the welfare checklist as set out in the Adoption and Children Act 2002 to the circumstances of the case
- The Court should then consider proportionality when determining what order to make, and in an adoption case must specifically address the formulation set down by the Supreme Court in Re B (in essence that ‘nothing else will do’
Nothing within that sequence of events is at all controversial or new. What might be new is the Court of Appeal’s focus on the welfare checklist and how that exercise must be approached judicially, and by any appellant Court looking at whether the exercise was approached.
In particular whether the approach of dealing with the welfare checklist in a linear way – by looking at the merits of the parents case against the welfare checklist and then only at point (g) range of powers available to the Court mapping out the pros and cons of the various options, is in fact the wrong way to go about things.
- The wording of certain elements of the welfare checklist must, I would suggest, involve a direct comparison of the relevant options that are being considered, for example:
(c) the likely effect on him of any change in his circumstances;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.
- Under s 1(3)(c), consideration of the effect of any change in the child’s circumstances must involve considering, in the present case, not just the prospect of returning to the mother’s care but must include consideration of the effects, positive and negative, of placement in long-term foster care. Under s 1(3)(e), consideration of the risk of harm obviously will include the potential for future harm from parental care, but must also require evaluation of any risk of harm from the alternative option provided by ‘any other person’, namely the local authority as corporate parent, for example emotional harm as a result of long-term separation of a child from his parent. Under s 1(3)(f), when considering how capable ‘each of his parents, and any other person’ are to meet the child’s needs, again I would suggest that, alongside consideration of the parent’s capacity, there is a need to look at the strengths and detriments in the local authority’s capacity to meet his needs through long-term fostering.
What the Court of Appeal are saying here is that the Court must not simply look at the case for the child remaining with the parent, analyse this, and then if determining that this is not possible, move on to considering what type of order would be appropriate. The Court cannot properly decide whether the child should be with a parent based on the pluses and minuses of THAT option, but must weigh into the balance the pluses and minuses of the OTHER options.
It is not, as they say, a linear exercise, but one of laying out the various options and comparing them alongside one another. When considering, for example, the ‘capacity of the parent or any other person to meet his needs’ the Court must not only look at what the parent could offer under no order or a Supervision Order, but what the Local Authority could offer (including any deficiencies) under a Care Order or Placement Order.
The structure of the welfare checklist, culminating as it does with the “range of powers available to the Court” seems to tempt the Court into approaching that comparison of the various orders only at that stage, but this would be the wrong approach.
They develop this further – underlining mine
- In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
- The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.
- One only has to take an extreme example of the effect of linear consideration to see the potential danger for this approach. The linear model proceeds by evaluating and then eliminating each individual option in turn before selecting the option at the end of the line, without evaluation of its own internal merits or de-merits, simply on the basis that it is the only remaining outcome. Much therefore depends on which end of the line the selector starts the process. Conventionally those judges who deploy a linear approach start, for understandable reasons, with the option of rehabilitation to a parent and end with the option of a care or adoption order. If, however, for the purposes of observing the dangers in the process, one were to start at the other end of the line and look at long-term foster care or adoption first, and were then to rule that out on the basis that there are risks and negatives attaching to it, the linear approach would soon arrive at ‘rehabilitation to a parent’ as the only remaining option and select that without any consideration of whether that is in fact the best outcome for the child. All would agree that such an approach would be untenable. I hope, however, that this example demonstrates how inappropriate the linear model is for a judge who is tasked with undertaking a multi-faceted evaluation of a child’s welfare at the end of which one of a range of options has to be chosen.
- A further concern about the linear model is that a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.
- In mounting this critique of the linear model, I am alive to the fact that, of course, a judgment is, by its very nature, a linear structure; in common with every other linear structure, it has a beginning, a middle and an end. My focus is not upon the structure of a judge’s judgment but upon that part of the judgment, indeed that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place. What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.
I think those words about “formulaic window dressing” are apt – and are similar in nature to the reinforcement of the Supreme Court in Re B that the Court have to genuinely look at and tackle proportionality and human rights, rather than just the stock phrases of ‘the interference with article 8 is proportionate and necessary in this case to safeguard the child’ without looking behind that stock phrase into what is genuinely meant and intended. When the term ‘draconian’ is thrown about the Court room, which it is, and often– if one were somehow able to calculate all of the occasions when the word ‘draconian’ was uttered I think 85% or more would be in the Family Court; it isn’t sufficient just to say the word, those present must feel the weight of what that word really means.
It becomes clear then, that the role of a Court in determining any application for public law orders is to get heavily stuck into the Welfare Checklist. The culture that has sprung up over years of the Welfare Checklist largely being extracted from the social worker’s statement with perhaps a few corrections or additions here or there, is unlikely, in the light of Re G to be sufficient.
This must be an comparative exercise balancing each of the options open to the Court and weighing them each against the other. It would be fair to say that most Welfare Checklists I have seen have been constructed more on the linear model, where one starts with an assumption that the child should be placed with the parents and analyses whether or not that is possible, rather than following each of the options through each stage and weighing each against the other. The weighing process, if any, tends to happen at the very end of the Welfare Checklist once the linear process has been undertaken (resulting in either ‘Yes, child can be with the parent’ or ‘no, the child can’t be with the parent’) when it comes to the Range of Powers available to the Court and positing which orders are appropriate on the basis of the linear process having ruled in or ruled out the child being with a parent.
Re G makes the Welfare Checklist even more important than it is at present, at the very time of course, that the PLO standardised documents take it out as a flowing self-contained part of the social work evidence and it vanished from Guardian’s reports long ago in all but very rare cases. Judges will now have to fish around in the social work statement for the social work analysis of the welfare checklist, scattered as it now is throughout the document rather than residing in one defined section.
As the Court of Appeal say in this case about the two Judges whose decisions were the subject of this appeal (underlining mine again)
Before moving on, I would like to acknowledge the strong professional sympathy that I feel for DJ and HHJ who find themselves in the invidious position of having their judgments subjected to scrutiny by the Court of Appeal armed, as it always is, with 20/20 hindsight but, on this occasion, also armed with a strong decision from the Supreme Court that has been injected into the mix between their respective involvements in the case and this judgment. I wish to stress that the observations that now follow are made in this case because it provides the opportunity to do so, and not because there is anything in these two judgments which is worthy of additional individual criticism. My working life is now spent very largely in reading first instance, and less frequently, first level appeal judgments. The concerns that I have about the process in this case are concerns which have also been evident to a greater or lesser extent in a significant number of other cases; they are concerns which are now given sharper focus following the very clear wake-up call given by the Supreme Court in Re B. I therefore hope that DJ and HHJ will be stoic and may see their judgments in this case as being the unwitting launch vehicles for what now follows, rather than its specific target.
I suspect that in the immediate future, advocates will be particularly alert during the passages of a judgment that deal with the welfare checklist, because the cursory race through it, or formulation of “I adopt the welfare checklist as set out in the social work final evidence” will not be sufficient.
(Moving on from this, one MIGHT conclude that in order for Judges to properly and thoroughly analyse the weaknesses of the care that the State can provide for any particular child, some proper independent, neutral, rigorous and up to date research on delay, breakdown rates, abuse in State care, the factors that are indicative of a successful or poor prognosis for children in State care or adoptive placements, children’s thoughts and feelings about being cared for by the State, how issues of loss endure or resolve for these children and outcomes for children in State care would be both extremely helpful and long overdue. Otherwise there is a risk that the information is either overly rose-tinted or overly negative depending on who is providing it to the Judge)