Care Order Splits Court of Appeal

An appeal against care orders made by a Circuit Judge led to another split decision in  the Court of Appeal last week in a case which each appeal judge observed to be very difficult:  H-W (Children: Proportionality) [2021] EWCA Civ 1451 – Lewison, Peter Jackson, Elizabeth Laing LJJ

Care orders had been made by the judge for three children and an interim care order for a fourth, after two substantial hearings lasting nine days and six days, the second of which was under appeal.

Practitioners may wish to examine the details of this important judgment for themselves.  Suffice it to say for these purposes, Jackson LJ would have allowed the appeal and remitted the matter to the Family Court for further consideration, believing that the judge was wrong and his decision could not stand.

In his view, the judgment did not adequately address the fundamental issue in the case: the balance of advantage and disadvantage for the three older children of remaining at home or being removed.

The second significant matter was that if the decision was left undisturbed, it would have huge implications for the fourth child, greatly magnifying the impact of the first error.

Paying tribute to Peter Jackson LJ’s knowledge and experience in this field, which were infinitely greater than hers, Lady Justice Elisabeth Laing observed that the question at the heart of the appeal was whether, and if so, in what circumstances, the state should break up a family.  It was one of the most drastic steps the state could take.

There were, in this case, powerful factors pointing in opposite directions.  But this was not a case in which the decision had been made hastily or arbitrarily.  As a human being and a parent, Lady Justice Laing shared the considerable misgivings expressed by Peter Jackson LJ.

But our system required, first, conscientious and diligent judges in the Family Court to bring to bear all their specialist experience to cases like this. They listened to the evidence and had to make decisions within a well-defined legal framework in cases which imposed unique intellectual and emotional demands.

The sheer difficulty of making and explaining a decision like this could not be underestimated.

It was precisely in very hard cases like the present one where the appellate court must take the greatest care to resist the temptation to reflect, in its decision, its unease about, or disagreement with the decision of the fact-finder, particularly where a case was so finely balanced.

There was a range of different ways in which a judgment like this could be expressed, just as there was a range of reasonable decisions which were open to the first instance judge.

The judge had to make his own assessment of a complicated picture and then, on the basis of that assessment, make a very difficult decision.  In our system, that decision was for him to make.

The judgment of Peter Jackson LJ was cogent indeed, but Lady Justice Laing could not say that the judge was “wrong” (in the sense in which that word was used in the test for allowing an appeal in such a case).  She would therefore dismiss the appeal.

Lewison LJ also recognised that Peter Jackson LJ’s experience and expertise was far greater than his own, but the judge had given himself impeccable legal self-directions and clearly had all the relevant considerations in mind.

The question was not whether the appeal court would have reached the same decision as the judge.  In cases which were marginal, it was all the more important to trust the wisdom and discretion of an experienced family judge,  particularly one who had been immersed in the evidence, not only in relation to the welfare decision but also the prior fact-finding decision.

Having read the draft judgment of Lady Elisabeth Laing, Lewison LJ agreed with everything she said, so the appeal was dismissed by a majority.