Welfare Decision Remitted: Findings of Fact preserved
A trial judge’s order for adoption of three children was set aside in the Court of Appeal today.
The judge made damning findings about the credibility of the parents, describing the mother as the most egregious liar I have ever encountered, and observing that the father appears not to know when he is telling the truth and when he is lying.
Keehan J found that a return to the care of the parents would place the children at a high risk of suffering significant harm in the future and throughout their respective minorities.
The Court of Appeal reminded itself that first principles require that adoption of a child against the parents’ wishes should only be contemplated as a last resort – when all else fails[1]
That was a stringent test and a rigorous and reasoned evaluation of all the realistic options must be carried out before it could be concluded that adoption is necessary and proportionate[2]: K (Children Placement Orders) [2020] EWCA (Civ) 1503 (Underhill LJ, Vice President, Peter Jackson, Simler LJJ)
The relevant welfare checklist would be of particular value in a difficult or unusual case. Section 1(4) of the Adoption and Children Act 2002 provided that:
(4) The court or adoption agency must have regard to the following matters (among others) –
- The child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),
- The child’s particular needs
- The likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
- The child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,
- Any harm (within the meaning of the Children Act 1989 (c.41) which the child has suffered or is at risk of suffering,
- The relationship which the child has with relatives, … including
(i) The likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) The ability and willingness of any of the child’s relatives … to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
(iii) the wishes and feelings of any of the child’s relatives … regarding the child.
The list provided structure for decisions and ensured that all welfare elements were taken into account.
The next general matter concerned the significance of lies. The correct approach to lies in relation to fact-finding was well-known and the Judge appropriately gave himself a Lucas direction in that context.
The more pertinent matter for the Court’s purpose concerned lies in the context of welfare. Lies, however disgraceful and dispiriting, must be strictly assessed for their likely effect on the child, and the same could be said for disobedience to authority.
In some cases, the conclusion would simply be that the child unfortunately had dishonest or disobedient parents. In others, parental dishonesty and inability to co-operate with authority may decisively affect the welfare assessment.
But in all cases the link between lies and welfare must be spelled out. That did not happen in Re Y (A Child) EWCA Civ 1337, where Macur LJ said at [7(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.
In Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 276 Peter Jackson LJ set out the questions that the court should ask itself when assessing risk of future harm and setting it in context:
- What is the type of harm that might arise?
- What is the likelihood of it arising?
- What consequences would there be for the child if it arose?
- What steps could be taken to reduce the likelihood of harm arising or to mitigate the effects on the child if it did?
The answers were then placed alongside other factors in the welfare equation so that the court could ask itself:
- How do the overall welfare advantages and disadvantages of the realistic options compare, one with another?
- Ultimately, is adoption necessary and proportionate – are the risks bad enough to justify the remedy?
Against that background, the decision to make care and placement orders for the children in the current case could not be sustained on the basis of the Judge’s reasoning. His findings of fact could not be criticised and the threshold for making care orders was plainly crossed.
However, in a case in which the risk of harm was the central issue in proceedings, there was substance in the argument that the judge did not sufficiently examine the reality of the risks for the children if placed with their parents.
Nor, in a case where the other welfare factors tended to point away from adoption, did the judgment explain why those risks were so bad that it outweighed them.
Instead, the parents’ reprehensible behaviour came to eclipse other welfare considerations. The judgment treated the risks presented by the parents as self-evidently unacceptable.
That conclusion needed further explanation and the analysis was circular. The real question was whether the findings justified adoption.
The case was therefore remitted for a fresh welfare decision, preserving the judge’s findings of fact. Care and placement orders were set aside and interim care orders revived. The Court added that the parents’ undeserved success on this appeal should not lead them to assume that their children would not be adopted.
[1] Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 191 per Lord Neuberger at 104.
[2] Re B-S (Children) [2013] 2013] EWCA Civ 1146, [2014] 1 WLR 563