M (A Child), In the Matter Of

Factual and Procedural Background

This appeal concerns the refusal by HHJ Scarratt on 3 June 2024 of the Local Authority's ("LA") application for a placement order regarding a 4-year-old female child, referred to as "M". The initial ex-tempore judgment on 15 May 2024 declined to endorse the LA’s care plan for adoption, finding it was not in M’s best interests to be placed with her mother in the community. The judge invited the LA to amend its care plan to long-term foster care with ongoing contact between M and her mother.

The LA provided an updated care plan by 22 May 2024, but the court and parties expressed concerns about its inadequacy and misrepresentation of the Children's Guardian's views. The LA was directed to file a further final care plan by 17 June 2024, to be considered on 9 July 2024. Meanwhile, the LA made inquiries of M’s current foster carers regarding their willingness to provide long-term care; they indicated a maximum commitment of five years, not until M’s adulthood.

At the hearing on 9 July, the judge noted this new information about the foster carers’ limited commitment and indicated that his decision might have been different had he known this earlier. He communicated this concern to the Court of Appeal. Permission to appeal was granted by Peter Jackson LJ due to the unsatisfactory status of the decision concerning M’s long-term future.

The appeal was allowed, and directions were given for a rehearing before a different judge to urgently manage the case and reconsider the applications for care and placement orders.

Background facts include that the LA initiated public law children’s proceedings shortly after M’s birth due to serious concerns about domestic abuse by the father against the mother and other risk factors. Initial proceedings concluded with a supervision order, but concerns about the mother’s contact with the father led to renewed care proceedings. The LA’s care plan for adoption and placement order was supported by the Agency Decision Maker, social worker, and Children’s Guardian, but opposed by the mother. Throughout, M and her mother were placed together in mother and child foster placements.

The ex-tempore judgment of 15 May 2024 rejected adoption as the primary plan, finding fostering with significant contact with the mother to be in M’s best interests. The judge emphasized the bond between mother and child and the risks of trauma and attachment difficulties with adoption. He concluded that long-term fostering with the current foster carer or elsewhere would best promote M’s welfare throughout her minority.

Legal Issues Presented

1. Whether the judge erred in dismissing adoption as a realistic option for the child without adequate reasoning.
2. Whether the judge failed to properly evaluate and compare the realistic options of adoption versus long-term fostering in a holistic manner.
3. Whether the judge’s reasons were adequate and sufficiently detailed, particularly regarding the assessment of welfare factors and the decision-making process.
4. Whether the judge’s decision was affected by erroneous factual assumptions about the foster carers’ willingness to provide long-term care.

Arguments of the Parties

Local Authority's Arguments

• The judge prematurely dismissed adoption without sufficient reasoning, incorrectly stating the case was never really about adoption.
• The judge’s skepticism about the adoption care plan and open adoption was unfounded and improperly influenced his decision.
• The judge failed to conduct a proper holistic evaluation comparing adoption and long-term fostering, neglecting key welfare factors including the mother’s risk factors and the potential benefits of adoption.
• The judge’s linear approach to decision-making was contrary to established legal guidance requiring a comprehensive welfare evaluation.

Children's Guardian's Arguments

• Initially neutral, later supporting the LA’s appeal for the same reasons.
• Supported a time-limited search for an open adoptive placement and, regardless of its success, the making of a placement order.
• Requested guidance on post-adoption contact law, but the court declined to consider this issue as it was tangential and not argued as a discrete matter.

Mother's Arguments

• Acknowledged the judge’s email raised legitimate concerns warranting appeal.
• Contended the judge’s decision was not conditional on the current foster placement enduring, as the judge recognized the risk of placement breakdown.
• Argued that a foster carer’s change of mind or placement breakdown should not automatically justify appeal or re-litigation; the judge could re-open the case if necessary.
• Asserted the judge’s reservations about adoption did not amount to a peremptory dismissal and that the judgment contained sufficient analysis despite being brief.
• Maintained that the judge, an experienced practitioner, was aware of relevant welfare factors and appropriately focused on the case’s specific circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

The court found that the judge’s decision was primarily based on an erroneous factual assumption that the foster carers would provide long-term care until the child’s majority. This was contradicted by unequivocal evidence that the carers could only commit to a maximum of five years. The judge’s intervention during evidence and subsequent email to the Court of Appeal confirmed this misunderstanding.

The court acknowledged that a change of mind by foster carers or placement breakdown is not itself a ground for appeal but may justify rehearing. However, here the judge had effectively heard different evidence than was given, undermining the validity of his ex-tempore judgment.

The judge’s reasoning was criticized for adopting a linear approach, dismissing adoption prematurely without a full, balanced welfare evaluation of all options, contrary to established case law. The judgment lacked rigorous and unsentimental analysis of the viability of maintaining the mother-child relationship through fostering versus adoption.

While the judge was experienced and familiar with relevant welfare considerations, the court found the judgment insufficiently detailed and structured to justify the decision without rehearing. Attempts to rely on the judge’s experience to fill gaps in reasoning were rejected, citing authority that deficiencies on this scale cannot be remedied by requests for clarification.

Consequently, the court concluded that the matter must be reheard by a different judge to ensure a proper and holistic welfare assessment of M’s future placement.

Holding and Implications

The court ALLOWED THE APPEAL and directed that the case be reheard urgently by a different judge assigned by the Family Presiding Judge in consultation with the Designated Family Judge. The rehearing will reconsider the applications for care and placement orders in light of the full and accurate evidence.

The direct effect of this decision is to set aside the earlier refusal of the placement order and to ensure that M’s long-term future is determined through a comprehensive and balanced assessment. The court explicitly declined to establish new legal precedent or to provide guidance on post-adoption contact, noting that such issues were not properly before it.