Factual and Procedural Background
This appeal arises from a care order made by the learned trial judge on 29 July 2021 concerning a child, referred to as M, born in 2008. The judge approved a care plan placing M in foster care and ruled that M should not return to the care of his father. The family dispute has been ongoing for several years and involves three children: M, an elder brother L, and a younger sister N. The proceedings began in 2015 following serious allegations of abuse within the family, primarily against the father, who was found to have committed acts of physical and sexual abuse against the mother and children. Previous appeals have been dismissed, affirming these findings.
The children have lived in various arrangements: N has lived with the mother continuously; L has lived with the mother since February 2021 after time in foster care and with the father; M has been in foster care since August 2019 and refuses contact with his mother and siblings but wishes to live with his father. The father is currently abroad but intends to return to face criminal charges related to assault on the mother.
The father appealed the care order decision on two grounds: first, that the court erred by not ordering an independent expert assessment of M's competence to instruct his own solicitor; second, that the care plan approved by the court lacked sufficient contingency planning and excluded the possibility of M returning to his father.
Legal Issues Presented
- Whether the court erred in law by deciding on the care order without an independent expert assessment of M's competence.
- Whether the court erred in law by approving a care plan that lacked sufficient contingency planning and categorically excluded the return of M to his father.
Arguments of the Parties
Appellant's Arguments
- The learned trial judge wrongly refused to order an independent expert assessment of M's competence despite the child's age and the length of proceedings.
- The court failed to provide adequate reasons for refusing the assessment of competence.
- The approved care plan was deficient because it lacked clear contingency arrangements and excluded the possibility of M returning to his father, which was argued to be unrealistic and unjustified.
Respondents' Arguments
- The judge was correct not to order an expert assessment as the Guardian ad Litem had assessed M's competence and found him not competent to instruct independently.
- The judge was uniquely well placed to assess competence given his extensive involvement in the case.
- The care plan, including its contingency arrangements, was appropriate and exclusion of return to the father was necessary to protect M’s welfare given the history of abuse and the father's influence over M.
Guardian ad Litem's Position
- The Guardian consistently represented M’s views, which were influenced by the father but nonetheless expressed a desire to return to him.
- The Guardian supported the care plan and the assessment of M’s competence as conducted by the trial judge.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re W (Representation of Children) [2017] 2 FLR 199 |
Guidance on assessing a child's competence to instruct a solicitor, emphasizing a practical and individualized approach. |
The court applied the principles to affirm the judge’s discretion in assessing M’s competence without an expert report, relying on the Guardian’s assessment and the judge’s own observations. |
| Gillick v West Norfolk [1986] AC 112 |
Established the test for a child's capacity to make decisions, focusing on intelligence and understanding. |
The court used this principle to frame the assessment of M’s competence in the context of family proceedings. |
| Re CS (A Child) [2019] EWHC 634 |
Provided guidance on assessing competence in private law proceedings, emphasizing the court as ultimate arbiter of understanding. |
The court adapted this guidance to the public law context and found the trial judge’s approach appropriate. |
| Re Z [2021] 2 FLR 830 |
Highlighted procedural irregularities in competence assessment and the need for timely, relevant expert evidence. |
The court distinguished the facts of Re Z from the present case, finding no procedural irregularity in the judge’s handling of the competence issue. |
| Re S (Minors) Care Order; Re W (Minors) Care Order [2002] UKHL 10 |
Clarified the nature and approval of care plans, requiring them to be sufficiently firm and particularised. |
The court applied this to confirm the care plan was adequately particularised and within the judge’s discretion despite excluding return to the father. |
| Re B (A Child) [2013] UKSC 33 |
Set the appellate test for interfering with family court decisions. |
The court confirmed the judge’s decision did not satisfy the high threshold for appellate interference and dismissed the appeal. |
Court's Reasoning and Analysis
The court carefully examined the issue of M's competence to instruct a solicitor independently. It acknowledged the appellant’s argument that an expert assessment should have been ordered due to M’s age and the duration of proceedings. However, the court emphasized that competence assessments are context-specific and that the judge was uniquely placed, after years of proceedings, to evaluate the evidence, including the solicitor Guardian's report and M’s conduct. The court accepted the trial judge’s finding that M was highly influenced and controlled by his father, lacking independent thinking in forming his views.
The court found no procedural irregularity or failure to provide adequate reasons. It noted that the father did not challenge the Guardian’s assessment by cross-examination or provide evidence to the contrary. The child’s refusal to engage with the judge was interpreted as consistent with the father’s influence rather than independent choice.
Regarding the care plan, the court recognized the discretion of the trial judge in approving it. The plan was sufficiently particularised and included contingency provisions for alternative foster placements and residential care, reflecting the limited options available for a child with M’s needs. The exclusion of a return to the father was justified by the judge’s prior findings of abuse and the potential for ongoing harm. The court rejected the father’s argument that the contingency plan should have included a return to him, finding it unrealistic and contrary to M’s welfare.
Overall, the court found the trial judge’s decisions well reasoned, factually supported, and within the scope of judicial discretion.
Holding and Implications
The court DISMISSED the appeal.
The direct effect is that the care order placing M in foster care remains in force, and the approved care plan excluding the possibility of M returning to his father stands. The court confirmed that no expert assessment of M’s competence was required under the circumstances and upheld the trial judge’s discretion in approving the care plan. No new legal precedent was established by this decision; rather, it reinforces the principle that competence assessments and care plan approvals are highly fact-specific and within the trial judge’s discretion, particularly in complex, long-running family proceedings involving child welfare and protection concerns.