Care and placement orders: process.

Harris, Alexandra Conroy

H (Children) [2012]

Court of Appeal (Civil Division) Thorpe & Rafferty LLJ, Norris J

16 May 2012 [2012] EWCA Civ 743

Three children were taken into foster care as a result of domestic violence and their mother's mental health difficulties. The mother had achieved 13 months of stability in compliance with a treatment plan and the court was asked to decide whether the children should remain in long-term foster care or return to her. The independent expert witnesses all supported a rehabilitation plan and during the course of evidence the children's guardian switched her support from the local authority to the mother. The judge found against rehabilitation on the basis of what he described as 'ten uncertainties'. He made care orders and then proceeded to make placement orders on the basis of submissions only.

Held

The judge had failed adequately to set out his reasoning for rejecting the recommendations of the experts and guardian, and had failed explicitly to address the right to family life of the children and of the mother. It might have been open to him to reach the conclusions that he did, but the lack of 'careful, explicit explanation [was] fatal to the care orders'. The judge was also criticised for making placement orders without the requirements of the Family Procedure Rules having been met. The court of appeal also disapproved of the guardian's position on the appeal, which was to 'sit on the fence'. The court accepted that although there should not be unnecessary representation of parties at appeals, the children and the court were entitled to a carefully thought out independent view and analysis of the judgment and other parties' arguments.

Comment

The court was rightly concerned about the shortfalls in analysis and explanation given in the judgment in relation to the care orders, but even more so in the making of placement orders. The application for placement orders had been issued in January for a final hearing in February and the guardian had not been appointed in that application. The judge did not have an independent report in that application and made the orders almost automatically as a consequence of the making of care orders. This comes at a time when Regulations have been passed abolishing the involvement of adoption panels in 'should be placed for adoption' decisions on the basis that their careful deliberations were duplicated by the scrutiny of the courts in making placement order decisions. This case emphasises the importance of the decisions being made by the courts and reminds them that the making of a placement order does not automatically follow from the making of a care order. The decision to allow the placement of a child for adoption demands separate and careful consideration.

Alexandra Conroy Harris, BAAF's Legal Consultant, prepared these notes