D (A Child: Placement Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Popplewell,Lady Justice King |
| Judgment Date | 30 June 2022 |
| Neutral Citation | [2022] EWCA Civ 896 |
| Docket Number | Case No: CA-2022-000340 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 896
Lady Justice King
Lord Justice Peter Jackson
and
Lord Justice Popplewell
Case No: CA-2022-000340
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LIVERPOOL
His Honour Judge Greensmith
LV19C03209
Royal Courts of Justice
Strand, London, WC2A 2LL
Aidan Vine QC and Neil Christian (instructed by Canter Levin & Berg Solicitors) for the Appellant Grandmother
Lorraine Cavanagh QC and Jonathan Taylor (instructed by Legal Services) for the Respondent Local Authority
Hearing date: 22 June 2022
Approved Judgment
This judgment will be handed down remotely by circulation to the parties' representatives by email and released to the National Archives. The date and time for hand-down is deemed to be 10.30am on 30 June 2022
Introduction
The recent decision of the Supreme Court in H-W (Children) [2022] UKSC 17 underlines that a decision leading to adoption, or to an order with similarly profound effects, requires the rigorous evaluation and comparison of all the realistic possibilities for a child's future in the light of the court's factual findings. Adoption can only be approved where it is in the child's lifelong best interests and where the severe interference with the right to respect for family life is necessary and proportionate. The court must therefore evaluate the family placement and assess the nature and likelihood of the harm that the child would be likely to suffer in it, the consequences of the harm arising, and the possibilities for reducing the risk of harm or for mitigating its effects. It must then compare the advantages and disadvantages for the child of that placement with the advantages and disadvantages of adoption and of any other realistic placement outcomes short of adoption. The comparison will inevitably include a consideration of any harm that the child would suffer in the family placement and any harm arising from separation from parents, siblings and other relations. It is only through this process of evaluation and comparison that the court can validly conclude that adoption is the only outcome that can provide for the child's lifelong welfare – in other words, that it is necessary and proportionate.
The question on this appeal is whether a decision that a child could not be placed with his grandmother but should instead be placed for adoption was reached after such a rigorous evaluation and comparison, or whether, as the grandmother argues, the process was deficient because the court did not fully evaluate the option of a placement with her, nor properly compare its advantages and disadvantages with the advantages and disadvantages of adoption.
The grandmother's argument is convincing. For the reasons given below, I would allow the appeal and remit her claim for a rehearing. In the light of the extreme delay that has already occurred, this is highly unfortunate, but given what is at stake it is unavoidable. This court holds no view about the likely outcome of the rehearing, and I will say only what is strictly necessary to explain why the appeal succeeds.
The history and the proceedings
The appellant, aged 51, is the maternal grandmother of B, a boy who will soon be 3. She has two daughters. The elder, who lives some 50 miles away, has three children, two girls and B. She and the children's father are both deaf. In 2019, care orders were made in respect of the two girls, and they were placed with their paternal grandparents. As for B, he was removed at birth and has been in foster care all his life. The grandmother's younger daughter and that daughter's husband and child live with her, though they will move to their own accommodation soon.
In early 2020, following the removal of the sisters, the parents were convicted of child cruelty, arising from their grossly inadequate home conditions. Other concerns that led to the care proceedings relating to the sisters and to B's proceedings centred on domestic abuse in the parents' relationship and their dishonesty with professionals.
B's proceedings continued for 144 weeks up to the final order, with no less than 29 orders being made in the process. In October 2020 they were allocated to the judge (His Honour Judge Greensmith), whose final order was made on 24 January 2022 after a hearing that had lasted for a total of 21 days in four episodes: November/December 2020, June 2021, September 2021 and December 2021. Difficulties were experienced with intermediaries, signing interpreters, illnesses and computer technology, and adjournments were granted for further assessments to take place.
The grandmother had put herself forward to look after B from the outset. She was negatively assessed as a foster carer by the local authority in March 2020 because of concerns about her health, her home conditions, her smoking, and the history of her own parenting. However, in June 2020 an order was made for an assessment by an independent social worker (‘ISW1’) and in August 2020 she was joined as a party, although she did not obtain legal representation until January 2021.
The report of ISW1 in August 2020 identified some strengths in the grandmother's ability to meet B's needs, but it too did not recommend her as a foster carer or a special guardian. The assessor was particularly concerned about the closeness of the relationship between the grandmother and B's mother, which was said to have led to her failing to intervene on behalf of the sisters; now her focus was said to be too much on her daughter and not enough on B.
When the first episode of the final hearing took place, the judge was highly critical of the evidence of ISW1, apparently because of concerns about the witness's understanding of special guardianship. In a recording to an order of 4 December 2020, the assessment was described as “woefully inadequate and of limited value to the court”. Whether or not that criticism was warranted, the upshot was that another assessment was commissioned. This was carried out by ISW2, who reported in March 2021 and made a recommendation that was generally favourable to the grandmother.
The local authority did not accept the opinion of ISW2 and it declined to approve the grandmother as a foster carer. Further time was then taken up in exploring the issue of her physical capacity. She had for some years been claiming benefits for a level of disability that would be inconsistent with childcare. However, an occupational therapy report in November 2021 established that she was physically fit to care for B, whatever she may have said when making her claim.
One feature of the evidence was that the grandmother had called the police twice in September and October 2020 after seeing aggressive behaviour by the father towards the mother during an online call she was having with her daughter. However, when asked about this during the proceedings, she elaborately denied that she had made the reports.
The judge's decision
The judge delivered a written judgment running to just nine pages. He concluded that the parents were incapable of providing good enough parenting for B. There is no appeal from that decision, and that issue is settled. He next found that...
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...requirement that it be necessary and proportionate.” 22 Most recently, the correct approach has been reiterated by this Court in Re D (A Child: Placement Order) [2022] EWCA Civ 896, Peter Jackson LJ “The recent decision of the Supreme Court in H-W (Children) [2022] UKSC 17 underlines that......
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