D-S (A Child: Adoption or Fostering), Re
[2024] EWCA Civ 948
Re H (Parents with Learning Difficulties: Risk of Harm)
2 February 2023
[2023] EWCA Civ 59
Court of Appeal
A judge ordered a baby to be taken from her parents because of worries about older siblings. A higher court said the judge didn't look hard enough at ways to help the parents, and sent the case back to be looked at again.
Key Facts
- •Appeal against care and placement orders for 22-month-old H.
- •H's parents have cognitive difficulties; mother has a diagnosed learning disability.
- •H has four older siblings with cognitive impairments, all previously involved with social services.
- •Significant history of concerns regarding the family, including allegations of sexual harm and violence among siblings.
- •Parents conceded that the threshold criteria under s.31 of the Children Act 1989 were met.
- •Judge's judgment was excessively long (138 pages, 85,000 words).
- •No findings were made on allegations of sexual abuse against older siblings in prior proceedings.
- •Expert opinions were divided on the level of support needed for parents to care for H.
- •Concerns about the risk of harm to H from older siblings, particularly brother F.
- •F is about to move into supported living.
Legal Principles
Threshold criteria for care or supervision orders: significant harm and attribution to inadequate care or lack of parental control (s.31(2), Children Act 1989).
Children Act 1989
Standard of proof in care proceedings: balance of probabilities for both actual harm and likelihood of future harm; 'real possibility' of harm is insufficient unless the threshold has been crossed.
Re H (Minors) (Sexual Abuse: Standard of Proof), Re B (Children) (Care Proceedings: Standard of Proof), Re S-B (Children) (Care Proceedings: Standard of Proof)
Welfare checklist (s.1(3), Children Act 1989; s.1(4), Adoption and Children Act 2002) considers all relevant factors, including risk of harm.
Children Act 1989, Adoption and Children Act 2002
State's positive obligation under Article 8 ECHR and statutory duties (s.17, Children Act 1989; s.17A, Children Act 1989; s.1 and 2, Care Act 2014) to provide support to enable children to remain with their families.
ECHR Article 8, Children Act 1989, Care Act 2014
Proportionality: Adoption is a draconian measure; only used if no other option will meet the child's welfare needs.
Re H-W (Children)
Adequate reasoning in judgments: sufficient detail to show principles and reasoning, but not excessive detail; structured judgments.
Fage UK Ltd v Chobani UK Ltd, Re B (A Child) (Adequacy of Reasons), Re N-S
Outcomes
Appeal allowed.
The judge erred in relying on unproven allegations of sexual harm and insufficiently scrutinized the level of support needed, failing to properly apply the 'parenting with support' principle. The proportionality assessment was inadequate.
Care and placement orders set aside.
The reliance on unproven allegations and the inadequate assessment of support options led to an erroneous conclusion that only adoption would suffice.
Case remitted to the Family Division for reallocation to a different judge.
To ensure a fresh analysis of the evidence and options, applying the correct legal principles.