Council succeeds in appeal after judge made decision based on erroneous belief about length of commitment of foster carer
The Court of Appeal has allowed an appeal over the refusal of a local authority’s application for a placement order in respect of a four-year-old girl (M), finding that the judge based his decision primarily upon an “erroneous belief” that the current foster carer was going to continue to provide long-term foster care.
In M (A Child), In the Matter Of [2024] EWCA Civ 1000 (29 August 2024), Lady Justice Macur concluded: “In my view there is no escaping the conclusion that the judge did base his decision primarily upon an erroneous belief that V was going to continue to provide long term foster care for M.
“Whilst it is certainly possible to discern the primary motivation behind the judge's decision, namely, to maintain the mother and child relationship, the judgment lacks a rigorous and unsentimental assessment of the viability of that aim in the context of the actual evidence in the case and the contra welfare factors.”
The local authority first issued public law children's proceedings in August 2020 due to concerns regarding the serious incidents of domestic abuse the father perpetrated against the mother, his drug misuse, and refusal to engage.
The first set of proceedings concluded at an Issues Resolution Hearing on 20 October 2021 with the making of a 12-month supervision order.
However, due to concerns that the mother had resumed contact with the father during the period of the supervision order, the local authority made a renewed application for a care order in July 2022.
The local authority's care plan for a care order and placement order was supported by the Agency Decision Maker (ADM), social worker, and Children's Guardian, and opposed by the mother.
Macur LJ noted: “Throughout the entirety of proceedings, including at the time of the final hearing, M and the mother were accommodated together in mother and child foster placements.”
Outlining the ex-tempore judgment given by the judge in May 2024, Macur LJ said: “At the outset, the judge stated he was ‘not giving a full judgment’, and that he would ‘give short reasons’. He would not make an order for adoption but neither did he consider it to be in M's best interests to live with her mother outside of a foster placement.”
She added: “Significantly, in terms of the decision he reached, he said "I heard evidence from [V], the excellent foster carer, as I found her to be and as all parties found her to be, that she is there, if she is able to, to look after and care for this child. The law is clear, Re BS, nothing else will do. Adoption is the most draconian order this court can make."”
The judge concluded that long-term fostering with V would “best promote the child's welfare throughout her minority."
The judge directed the local authority to file an updated care plan, to be considered at a hearing in early June 2024.
However, a recital to the order made at the June hearing, indicated that:
"the Local Authority having provided an updated care plan but the Court and other parties expressing concern about the contents of this, stating that this is an inchoate care plan, to include misrepresentation of the views of the Children's Guardian. Accordingly, the Court did not feel in a position to endorse this final care plan at today's hearing."
The local authority was directed to file a further final care plan to be considered at a hearing in July 2024. The local authority's intended application for permission to appeal was adjourned to 11 October 2024.
Macur LJ said: “In the meantime, the LA had begun to make inquiries of M's present foster carers, V and K, via their 'new' fostering agency.
“In summary, the Team Manager wished to know whether, despite what had been said by V in the court proceedings, V & K "are putting themselves forward to care for [M] long term and what this may look like." The response was unequivocal: [V] and [K] have been very clear that the maximum amount of time they would keep M is 5 years…. They cannot commit to care for her until she is 18…"”
This information was provided to the judge at the hearing on 9 July.
The judge gave indication of further amendments required to be made to the care plan, but recited on the face of the order:
"to hear that the current foster carer has indicated that she can only keep [M] in her care for about 5 years, stating that this was not the impression she gave in evidence, the Court stating its decision might have been different in this extremely finely balanced case had it been aware of this. The Court indicated that a postscript will be added to the Judgment in relation to this issue, noting that the Local Authority has lodged an application to appeal the decision of the Court."
In the present appeal, the local authority advanced three grounds of appeal:
- Ground 1: The Judge erred in peremptorily dismissing adoption as a realistic option for M, a 4-year-old child.
- Ground 2: The Judge failed to sufficiently evaluate the realistic options. The Judge's evaluation of the critical comparison between adoption on the one hand, and long-term fostering on the other was inadequate. In particular:
- The judge failed to consider the mother's inability to understand, identify, and avoid risk;
- Consequently, the judge erroneously prioritised contact between the mother and M and failed to weigh other factors in an overall assessment of her best interests throughout her life: see Adoption and Children Act 2002 section 1(2);
- The judge failed to consider the impact of M spending 14 years in long term foster care as opposed to the benefits provided by adoption and "the enduring sense of belonging to a family";
- The judge's analysis was influenced by a preconceived and pessimistic personal view of the prospect of an open adoptive placement being identified, and thereafter failed to consider the powers available to the Family Court on the making of an adoption order;
- The judge did not have any or any adequate regard to the potential disruption in M's current foster placement;
- The judge speculated that M, if adopted, would be traumatised if the mother had further children and cared for them in the community.
- Ground 3: The Judge's reasons contained within his judgment were inadequate, see in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407. The Judge adopted a linear approach in evaluating the available options for the child's future care, contrary to the guidance of Sir Andrew McFarlane P as reiterated in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407 at [43] that:
"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 … 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."
Discussing the case, Lady Justice Macur said: “In my view there is no escaping the conclusion that the judge did base his decision primarily upon an erroneous belief that V was going to continue to provide long term foster care for M. The recital to the order made on 9 July and the fact and substance of the e-mail he sent to the Court of Appeal Office makes this clear, as does his intervention in the Children's Guardian's evidence.”
She continued: “I have no doubt that, of itself, a foster carer's 'change of mind' or placement breakdown is not an appropriate basis of an appeal. In such circumstances, the judge may re-hear the case, or a parent may apply to revoke care and/or placement order. But that is not the situation here.
“It would appear that the judge had 'heard' different evidence to that actually given. It may, of course, have been an entirely different situation if V's evidence was as the judge thought it to be, and which option may well have garnered the support of social worker and Children's Guardian, (particularly if a Special Guardianship Order was in prospect). However, it is difficult to comprehend how he so unhesitatingly reached the decision he did in the circumstances which appertained, and, without articulating his reasons to disregard the opinion evidence of all the professional witnesses, which led him to give an immediate and extempore judgment.”
She observed that the judge's comments in relation to 'open adoption' in general and the peremptory indication that "…this was never really an adoption case" suggested that the judge’s mind was “closed to any resolution but long-term fostering”, once he had ruled out placing M in the mother's care.
Drawing on relevant caselaw, Macur LJ said: “In Re W (A child) (Adoption: Grandparents' Competing Claim) McFarlane LJ (as he then was), cautioned in [68] and [69] against utilising the phrase "nothing else will do" as a "sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons”.
“Yet the judge obviously did fall into this trap, saying: "The law is clear, Re BS, nothing else will do. Adoption is the most draconian order this court can make. In my judgment, there is something else in this case that will do having regard to the evidence I have heard, and I have considered very carefully the other options. As I say, one is the return to independent living with the child, and the other is long-term fostering but with very sufficient significant contact as between [M] and her mother, that is what else will do. And I take that on board."”
Lady Justice Macur concluded she was not persuaded that, regardless of the mistaken understanding of V's position, there was “any sufficient analysis of the various welfare factors that must be considered in determining the nature of M's future placement”.
She found there was “no other realistic option” than to remit the case for a rehearing before a different judge.
Lord Justice Bean and Lady Justice Andrews agreed.
Lottie Winson
