Factual and Procedural Background
These proceedings concern a young child, referred to as P, now aged two, who has lived with her maternal grandmother ("MGM") since birth. Initially, P lived with her mother and the MGM pursuant to a written agreement with the Local Authority. Following the commencement of care proceedings on 28 September 2023, P has lived with the MGM alone under an interim care order.
The Local Authority, Company A, appealed orders made by Recorder Howard ("the judge") on 18 October and 14 November 2024. The final hearing occurred between 14 and 18 October 2024. The judge was tasked with deciding whether P should be brought up within her family by the MGM or be placed for adoption. The realistic options were a final care plan for adoption or for P to remain with the MGM under a care order, private family law order, or a special guardianship order (SGO), each accompanied by a suitable support package.
On 18 October, the judge dismissed the application for a placement order and adjourned the case to 14 November for the Local Authority to reconsider its care plan, particularly regarding the MGM’s approval as a foster carer or special guardian. On 14 November, the Local Authority maintained its position, sought permission to appeal, which was refused by the judge, who also declined to make a final order determining the care proceedings. The interim care order remained in force, and the proceedings were adjourned to 16 January 2025 with directions for the Local Authority to file minutes of a recent Agency Decision Maker meeting and a supervision order support plan.
The form of order under which P would live with the MGM remains undetermined. The Local Authority contended that the only option left was a child arrangements order with a supervision order, but the judge required a supervision order support plan before making such an order. The MGM and parents opposed the Local Authority’s application for permission to appeal and supported orders enabling P to remain with the MGM.
Legal Issues Presented
- Whether the judge erred in dismissing the placement order application at the October 2024 hearing without conducting a comparative evaluation of all placement options simultaneously.
- Whether the judge erred in adjourning the proceedings on 14 November 2024 instead of making a final order.
- Whether the judge failed properly to evaluate the risk to P if she remained in the MGM's care throughout her childhood.
Arguments of the Parties
Appellant's Arguments (Local Authority)
- The judge’s dismissal of the placement order application was premature and flawed, adopting a "linear" approach rather than a comparative evaluation of all placement options.
- The judge lacked sufficient evidence of the support package available if P remained with the MGM, which was necessary to evaluate risks and make a proper welfare determination.
- The judge should have adjourned the placement order application to consider all options simultaneously.
- Although arguing for more evidence, the Local Authority also submitted there was ample material to decide the case on 14 November and that the judge should have made a final order then.
- The judge failed to properly assess the risk of harm to P in the long term due to the MGM’s past failures and cognitive limitations.
Respondents' Arguments (MGM, Mother, Father)
- The judge’s welfare analysis was not linear; she conducted a comparative evaluation of the realistic options and reached final conclusions on whether P should be placed for adoption or remain with the MGM.
- The judge was entitled to reject the Local Authority’s and Guardian’s assessments of future risk, concluding that the MGM could develop insight and safeguard P with appropriate support.
- The judge’s decision to dismiss the placement order was proportionate and necessary, balancing the risks of future harm against the profound harm removal would cause P.
- No need to keep the placement order option "on the table" once the judge had determined it was not necessary or proportionate.
- Adjournment was appropriate only to determine the form of order and support arrangements, not the substantive merits of P remaining with the MGM.
Guardian's Arguments
- The judge was wrong to dismiss the placement order application in isolation.
- The judge’s analysis of risk was flawed and inadequate because she lacked evidence about the support and therapeutic services available to the MGM.
- Further evidence was necessary before a proper welfare determination could be made between the competing placement options.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| In re T (A Child) (Care Proceedings: Court's Function) [2018] 4 WLR 121 |
Guidance on the court’s function in care proceedings and reconsideration of care plans after judgment. |
The judge directed the Local Authority to reconsider its care plan in light of the judgment, consistent with this precedent. |
| In re W (A Child) (Care Proceedings: Court's Function) [2014] 1 WLR 1611 |
Guidance on the court's role in care proceedings and care plan evaluations. |
Referenced to support the judge’s direction for the Local Authority to reconsider its care plan post-judgment. |
| Re F (A Child) (Placement Order: Proportionality) [2019] 1 FLR 779 |
Framework for proportionality and welfare evaluation in placement order decisions. |
The Local Authority relied on this case to argue the judge failed to address all necessary questions in the proportionality assessment. |
| Piglowska v Piglowski [1999] 1 WLR 1360 |
Principles governing appellate court review of first instance judgments. |
Cited to emphasize appellate restraint in interfering with trial judge’s fact-finding and welfare assessments. |
| Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 |
Appellate approach to evaluation of evidence and findings of fact. |
Referred to in considering the appellate court’s role in reviewing the judge’s welfare evaluation. |
| Re YW (A Child) (Adequacy of Reasons) [2021] EWCA Civ 1174 |
Standards for adequacy of judicial reasoning in family cases. |
Supported the principle that the judge’s reasoning must be sufficient to demonstrate the basis of the decision. |
| In re H-W (Children) [2022] 1 WLR 3243 |
Necessity and proportionality test in care orders and appellate review of welfare decisions. |
Applied to confirm the judge’s duty to undertake a balancing exercise and the appellate court’s limited interference. |
| In re B-S (Children) (Adoption Order: Leave to Oppose) [2014] 1 WLR 563 |
Requirement for comparative evaluation of realistic placement options. |
Used to support the principle that the court’s evaluation should not be linear but comparative. |
| In re G (Care Proceedings: Welfare Evaluation) [2014] 1 FLR 670 |
Framework for welfare evaluations and balancing pros and cons of placement options. |
Referenced to reinforce the need for side-by-side analysis of placement options. |
| In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 |
Strict test for severing parent-child relationships; necessity and proportionality of adoption orders. |
Guided the judge’s approach to the “nothing else will do” test and proportionality in adoption decisions. |
| In re W (A Child) (Adoption: Grandparents' Competing Claim) [2017] 1 WLR 889 |
Clarification of the “nothing else will do” test as part of overall welfare evaluation. |
Explained that the test is a distillation of proportionality and necessity in adoption decisions. |
Court's Reasoning and Analysis
The appellate court addressed the Local Authority’s contention that the judge adopted a "linear" approach by ruling out adoption before fully evaluating the merits of P remaining with the MGM. The court found that the judge conducted a proper comparative welfare evaluation, balancing the realistic placement options: adoption versus remaining with the MGM under a care order, private family law order, or special guardianship order. The judge reached a final conclusion that adoption was not necessary or proportionate and that P should remain with the MGM, although the precise legal framework for this placement remained to be determined.
The judge’s assessment included detailed consideration of the Local Authority’s concerns regarding the MGM’s ability to safeguard P, particularly the risk of future harm from unidentified third parties due to the MGM’s past failures and cognitive limitations. The judge acknowledged this risk but found the evidence supporting it was flawed and lacked a proper evidential basis, especially given no specialist therapeutic work had been undertaken with the MGM. The judge also noted that the MGM had accepted responsibility for past failings and was committed to learning and developing safeguarding skills, with cognitive difficulties not constituting an absolute barrier if appropriate support was provided.
The judge weighed the risk of future harm against the profound harm that removal from the MGM and family would cause P, who was thriving, happy, and securely attached. The judge concluded that the risk did not outweigh the harm of removal and thus did not justify a placement order. The court emphasized that the judge’s decision was a final conclusion on the merits of placement options, not merely a preliminary ruling.
Regarding the Local Authority’s argument that the judge lacked sufficient evidence of a support plan to make a final decision, the court noted that it is common for judges to make welfare decisions amid uncertainties about the prospects of change or support. The judge had been invited to decide the case on the evidence available at the final hearing and was entitled to do so. The absence of a detailed support plan was relevant to the form of order to be made, not the substantive welfare determination. The judge’s request for further evidence was to comply with best practice in supervision orders, not to delay the core decision.
The court also reiterated the principle that the test for adoption and severing family ties is strict and requires necessity and proportionality, consistent with the European Convention on Human Rights and established case law.
Holding and Implications
The appeal is DISMISSED.
The court upheld the judge’s decision that adoption was neither necessary nor proportionate and that P should remain living with the MGM. The judge’s welfare analysis, including her evaluation of future risk and balancing of harms, was found to be sound and adequately reasoned. The decision affirms the importance of a comprehensive comparative welfare evaluation in placement decisions and the high threshold for adoption orders that sever family ties.
The precise legal framework under which P will live with the MGM remains to be determined, pending further evidence and the filing of a supervision order support plan. No new precedent was established; the decision applies established principles of necessity, proportionality, and welfare balancing in care proceedings.