R-B (A Child)

This is an appeal against care and placement orders made by HHJ Black sitting in the Family Court at Portsmouth on 28 September 2018. The child who is the subject of these proceedings ("J") was born on 29 May 2018 and is therefore now aged 13 months.

In the light of these concerns, the local authority made J the subject of a child protection plan himself during S's pregnancy and after he was born decided to start care proceedings. An application was issued on 5 June 2018 when he was only a few days old. At the first hearing on 25 June, HHJ Levey made an interim care order on the basis of a care plan that provided for S and J to be accommodated together in a motherand-baby foster placement while various assessments were carried out of S's capacity to care for J. J's father was not living with S, and, although he has had contact with J, he has not at any stage put himself forward as a potential carer. He too is a young person from a difficult family background who has been supported by social services for a number of years.

In the following weeks, S and J did not have a stable life. Instead, they moved on several occasions between a series of mother-and-baby placements. Two of those moves were apparently necessary because the foster carers had pre-booked holidays. Other moves apparently took place because S said she was unhappy in the home. In the course of those placements, various concerns were raised about the quality of care which S was providing to her baby. There was also concern about S taking J to the family home and exposing him to the risk of harm there. On a number of occasions it was alleged that S had left J in the care of a foster carer for several hours, contrary to the arrangements set out in the care plan. As a result of these concerns, the local authority imposed a further restriction that S would not have unsupervised contact with

The assessments carried out included a psychological assessment of S. The psychologist concluded that her full-scale IQ was within borderline range. She was said to have the immaturity and inexperience of many girls of her age from deprived backgrounds. She was assessed as having the capacity to conduct proceedings and to give instructions, although it should be noted that the psychologist expressed a degree of caution about this, observing that "provided her solicitor is suitably experienced in and mindful of these considerations, and provided matters are discussed patiently and in simple terms, [S] should be able to provide appropriate instructions".

During the proceedings, the local authority instigated a PAMS assessment. The report of that assessment indicated a number of ways in which S had failed to provide appropriate care for her baby. The conclusion reached by the assessor was that, despite the support she had received in the placements, S had failed to demonstrate that she had the capacity to care for J or to prioritise his needs. The local authority therefore concluded that J should be removed permanently from her care and placed for adoption.

In accordance with the public law outline, the case was listed for an issues resolution hearing originally on 1 October 2018 but then brought forward by the court to 28 September 2018. In a position statement filed on her behalf two days before that hearing, S's solicitor stated that S had had the opportunity of reading the local authority's final evidence, was aware of the plan for adoption and was opposed to the plan. The solicitor proceeded to go through the allegations on which the local authority relied in support of their care plan and argument that the threshold under section 31 of the Children Act was crossed. The solicitor stated that the mother accepted some of the allegations but not others. The solicitor stated that the main point that S wished to raise was the fact that she and J had moved foster placements on four previous occasions.

The issues resolution hearing was listed before HHJ Black. A transcript of the hearing has been prepared for this appeal. The first part of the hearing lasted 13 minutes. I realise the danger of a partial quotation from a transcript such as this, but what follows is, I hope, a fair summary of what transpired during those 13 minutes. After the introduction, the judge addressed the mother's counsel. She referred to the mother's very young age and cognitive difficulties and to the fact that she had moved foster placements on several occasions. The judge expressed concern about the PAMS assessment and the concerns identified by the local authority. She said that:

Counsel then addressed the concern raised by the local authority about S absenting herself from the foster home and said that S had found it difficult when J had not been allowed to stay in her room after the restriction on unsupervised contact had been imposed. To this the judge responded:

A little later in the transcript the following exchange took place:

The judge then asked counsel whether the mother had had similar conversations with her solicitor, to which counsel replied that they had taken place. Counsel then continued with this observation:

The father's counsel then indicated that her client would support whatever S wanted to do. The judge then asked of the guardian's legal representative if the guardian felt that

The judge then gave a judgment. It is very short and, in fairness to all sides, I propose to recite it in its entirety:

My main concern, I have to say, having heard the change of position of the mother, was whether or not, given her age and her cognitive abilities, it was appropriate still to make final orders today. But I have been reassured by the fact that I know that the guardian (and she deals with it in her position statement) has been to see her and discuss the case with her, so she was aware of the guardian's position, aware of, if you like, what was probably the reality of the case; and knowing the solicitor who instructs and the fact that a position statement was served and advice and support would have been given to her in preparation of that; and knowing Mr Hughes as I do, and he has given a detailed account to the court of the process that he has gone through today and that he is satisfied that this is a decision that she has made and that she understands the decision she has made and what the impact of that will be.

Therefore, on balance, I am satisfied that it is appropriate and I can deal with this case by making final orders today. It is obvious from that I have said that I really could not see a way in which this mother could care for her son given the evidence against her.

So I make the care order sought by the local authority, I

The hearing then concluded with the judge making further observations about the section 37 report and the position of S's siblings. The whole hearing, including the time allowed for discussions between counsel and S, had lasted 55 minutes. The order made following the hearing, not apparently sealed for several weeks, was headed "Case management order number 3" and included inter alia the following terms:

Following the hearing, the local authority embarked upon a process of placing J for adoption. He was matched with prospective adopters in December 2018, introduced to them in early January and placed with them later that month. He has therefore been living with his prospective adopters for the past six months and is, we are told by local authority counsel today, well settled there.

On 12 February 2019 S filed a notice of appeal against the placement order. Her notice of appeal was four months out of time. It must, however, be remembered that she is still under the age of 17, has borderline learning difficulties and was apparently unrepresented following the hearing. In her notice of appeal she explained that she had not been able to find someone to give her legal advice until the middle of January and had been under the impression that she could not file a notice of appeal without the sealed order from the court below, which she did not receive until 15 January 2019. The grounds of appeal identified in the notice of appeal were: (1) that the judge did not

The local authority was invited to file a statement in respect of the application for permission to appeal and did so on 26 February, opposing the application. There was then some delay while a transcript of the short judgment given by Judge Black was obtained, and it was not until May that the application for permission to appeal was referred to me.

On 23 May I granted permission to appeal, observing that there was a real prospect that the appellant mother would succeed in demonstrating that the process by which the judge reached the decision to make a placement order and expressed her decision in very brief reasons failed to comply with the requirements of statutory and case law, including the decision in Re B-S and the subsequent line of authorities. I gave directions for an urgent hearing of this appeal and for a transcript of the full hearing on 28 September to be obtained and expedited. I also gave directions about the mother's representation. At that point she was still unrepresented and remained so for some further weeks. Her application for legal aid was, we were told, delayed because she had failed to file the necessary financial information. At my request, the Civil Appeals Office contacted the Legal Aid Agency to see what could be done to expedite her application. It is unnecessary to set out the details of the conversations that then took place, but her application was eventually granted towards the end last week. This court is very grateful to the Legal Aid Agency for the assistance it provided in ensuring that S has been represented before us today.

In a supplemental skeleton argument filed yesterday, Ms Sophie Prolingheuer, who did not represent S below and who was only instructed late last week, sought to amend the grounds of appeal so as to read as follows:

The judge did not provide adequate reasons for the making of a care and placement order, thereby failing to comply with the requirements of the statutory framework and case law.

The appellant neither consented to nor opposed the making of care and placement orders, which the court regarded as consent and, as a result, there was no contested hearing.

(A new ground) The judge placed unreasonable pressure on S to change her position and denied her the opportunity of a contested final hearing.

Before us today, Ms Katrina Hambleton on behalf of the local authority, who also did not appear before Judge Black, did not oppose the application to amend and we accordingly granted permission to amend the grounds of appeal as requested. At the outset of the hearing, Ms Prolingheuer drew attention to the fact that the notice of appeal had not been served on either the father or the guardian by the mother (who was of course then acting in person) and that neither was therefore present or represented at this hearing. Efforts had been made to contact the guardian and the solicitor for the child but had only established that both are currently on leave. Both counsel before us took the pragmatic view that this appeal hearing should continue on the basis that the father would support the mother's position and the guardian would oppose it and support the local authority's position. Given the scope of the appeal, which is to consider the lawfulness of the process before the judge in the family court rather than

Under section 31 of the Children Act 1989, a care order can only be made if the court is satisfied that the so-called threshold criteria in section 31(2) are satisfied. It was not disputed before us that the threshold criteria were satisfied in this case. When deciding what order to make once the threshold is crossed, the court must apply section 1 of the Children Act, the welfare of the child being the paramount consideration. When dealing with an application for a placement order, the paramount consideration is the child's welfare throughout his life, and the court must have regard to the factors in the welfare checklist in section 1(4) of the Adoption and Children Act 2002. Where the court is asked to approve a care plan for adoption or to make a non-consensual placement order, there must be proper evidence from the local authority and the guardian addressing all the realistic possible options and an analysis for and against each option, and the judge must give an adequately reasoned judgment evaluating all the options and undertaking a comprehensive assessment of the child's welfare.

The importance of these two essential requirements has been stressed repeatedly by this court in a line of authorities starting with Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146; [2014] 1 WLR 563. That line of authorities followed the decision of the Supreme Court in Re B (Care Proceedings: Special Criteria) [2013] UKSC 37; [2013] 1 WLR 1911, which had stressed, in the light of the court's duty to evaluate proportionality, that non-consensual adoption should only be approved by courts where no other course is possible in the interests of the child's welfare.

The rationale for the need for reasoned judgments in these cases was expressed by

The family court is of course required to carry out robust case management in proceedings involving children, and that involves taking appropriate steps to identify and narrow the issues in the case and to resolve those issues expeditiously. It is however axiomatic that robustness cannot trump fairness. This principle was amplified by this court in Re S-W (Children) (Care Proceedings: Case Management Hearing) Practice Note [2015] EWCA Civ 27. In his judgment in that case at paragraph 52, Sir

At paragraphs 54 to 47, the President continued:

Rule 22.1 gives the case management judge extensive powers to control the evidence in a children case: see Re TG [2013] EWCA Civ 5, paras 27-28. But these powers must always be exercised, especially in care cases where the stakes are so high, in a way which pays due regard to two fundamental principles which apply as much to family cases as to any other type of case.

First, a parent facing the removal of their child must be entitled to put their case to the court, however seemingly forlorn …

Secondly, there is the right to confront one’s accusers. So, a parent who wishes to cross-examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so."

Earlier, in her judgment in that case, King LJ considered the practice of making final care orders at case management hearings and sounded these notes of caution at paragraph 41 of her judgment:

Where there remains any significant issue as to threshold, assessment, further assessment or placement, it will not be appropriate to dispose of the case at CMH.

It can never be appropriate to dispose of the case where the children's guardian has not at least had an opportunity of seeing the child or children in question and to prepare to a case analysis in which he/she considers the section 31A care plan of the local authority.

Where, unusually, a case is to be disposed of at CMH, adequate notice must be given to the representatives of the parents and guardian; reluctance on their part will ordinarily be fatal to the proposed course. Having said that, where all that is required is for the parties to have a little more time or for the local authority to prepare a section 31A care plan one can envisage cases where the matter is adjourned for a further CMH with the intention that final orders will be made at the adjourned hearing., Another example where in exceptional circumstances it may be appropriate to make final orders at the CMH could be where, the outcome is inevitable and the child's need for an immediate resolution to the proceedings is critical to his or her welfare.

A care order should not be made without some reasons or a judgment no matter how concise. It is not enough to proceed on the basis that the reasons for making a care order, and still more a placement order, can be distilled from the transcript of discussion between the judge and the parties at court. Whilst appreciating the ever increasing burden on family court judges in the preparing and giving of judgments there must at least be a short judgment/reasons noting the available options, the positions of the parties and confirming that the outcome for the child is in his or her best interests and is proportionate and therefore Convention compliant."

Finally, in the context of the present case, it is relevant to cite the observations of the third judge in the constitution of that case, Lewison LJ, at paragraph 43:

In her clear and succinct submissions to this court, Ms Prolingheuer on behalf of the mother chose to start her argument with ground 3. She pointed out that her solicitor had filed a position statement on behalf of this which set out the matters of factual dispute and clearly opposed the making of the care and placement orders and outlining what the mother would be inviting the court to consider at the final hearing. The case summary on behalf of the local authority also envisaged the listing of a final hearing.

Ms Prolingheuer drew attention to the comments made by Judge Black in the hearing cited above and submitted that those comments demonstrated that the judge had a concluded view that the appellant would be unable to provide good enough parenting to her baby. Ms Prolingheuer submitted that it was clear from the exchange after counsel indicated a change of position that that change had been made on the basis of the judge's comments in her assessment of the case and that the task in any final hearing for the mother would be to try to persuade her otherwise. Ms Prolingheuer submitted that there is a line that the court must be careful to navigate in every case between robust case management and premature adjudication of the case. She submitted that Judge Black in this case had erred in prematurely adjudicating matters on the basis of the written evidence alone and in communicating that decision to the vulnerable young

Ms Prolingheuer moved on to consider her first and second grounds of appeal taken together. She submitted that, given that S was not consenting to the care plan for adoption, it was incumbent on the judge to provide a reasoned judgment. Judge Black's failure to do so infringed the clear guidance of this court in Re B-S.

In her equally clear and succinct submissions in response, Ms Hambleton for the local authority submitted that the judge's comments at the hearing did not in fact amount to undue pressure at all, and she pointed out that the judge had clearly read the papers, including the PAMS assessment with its pessimistic conclusion, and was entitled to

Ms Hambleton relied on the well-known observations of Lord Hoffmann in the case of

In the alternative, Ms Hambleton submitted that, if S was dissatisfied about the reasons given for the judge's decision, the right course was for her to apply to the judge for further detailed reasons, in line with the well-established case law; see for example Re

I recognise of course the very considerable pressures that family court judges are under, dealing with an enormous caseload, particularly in public law proceedings. In such circumstances, robust and vigorous case management is essential. Judge Black is a highly respected and very experienced family judge who is well aware of the need to ensure that the line between robustness and unfairness is not crossed.

I regret to say however that I am in no doubt that the line was crossed in this case. The transcript of the very short hearing demonstrates that the judge came into court with a very clear view of the merits of the case. She indicated in clear terms that she was not prepared to allow the mother further time to demonstrate a level of stability and that, even if she did, she could not see how the mother could then be entrusted with the care of a child for 24 hours, seven days a week. She added:

When the hearing resumed, her counsel referred on more than one occasion to his mind having "oscillated" as to whether the mother understood the circumstances. That comment should have alerted the judge and everyone else in court as to the dangers of concluding the proceedings at that hearing. The judge was plainly alive to the question whether it was appropriate to proceed but, instead of having her concerns reinforced, seems to have been reassured by what counsel was saying to her. I recognise of course that reading a transcript is different from hearing submissions made orally, but I have to say that when reading the transcript it was manifestly obvious to me that the judge should not have proceeded to make the order that she did in this case at that hearing.

In passing I note that counsel told the judge that he had "made it clear" to his client "that it will be for her to try and persuade yourself or another judge". I do not of course know exactly what counsel said to his client, but if that is indeed what he said, it would be erroneous advice. The burden of proof rests at all times with the local authority, and the court can only make a placement order and approve a plan for adoption if satisfied in accordance with the Supreme Court decision in Re B that no other course is possible.

I therefore conclude that the appeal should be allowed on the third ground advanced by Ms Prolingheuer today. As identified by King LJ in Re S-W, it was inappropriate for the court to make any final order at that case management hearing given the significant issue between the parties. In my view, the change in the mother's position only came about because of the inappropriate comments made by the judge.

In the alternative, if, contrary to what I have said, it was appropriate for the court to proceed to make a final order, it was incumbent on the judge to give a proper, fullyreasoned judgment. In this case, the judge conspicuously failed to do so. As King LJ observed in Re S-W, it is not enough to proceed on the basis that the reasons for making a care and placement order can be distilled from early discussions between the court and counsel, yet in this case the judge began her brief judgment by referring to the fact that she had "made a lot of comments about this case before", adding that she was not going to repeat them knowing that legal representatives had taken a careful note. The judgment in truth does not contain or purport to contain any analysis of the reasons why the order was made. It is rather merely a recapitulation of what had happened at the hearing. The deficiencies in the judgment are to my mind on a scale that could not possibly be corrected by seeking further reasons, as suggested by Ms Hambleton, nor excused by reliance on the dicta of Lord Hoffmann in Piglowska.

I am reluctant to criticise a judge whose experience and expertise in this area is widely recognised. In this case, however, I regrettably conclude that there was a failure to follow the important guidance given by this court as to the proper management of these sensitive cases. It follows in my judgment that this appeal must be allowed. The applications for care and placement orders must be reheard by another judge. If my

I should warn the mother that, although (if my lord and Lady agree) this appeal will succeed, she still faces the very formidable difficulties in recovering the care of her baby son. He has been living with the prospective adopters for six months and is, we have been told, well settled with them. There has been no contact between S and J for several months. It may well be that a rehearing of these applications leads to the same result, namely the making of care and placement orders. But the law is clear that such orders can only be made after due process. That principle was manifestly infringed in this case, and I would therefore allow the appeal.

I agree.

I also agree.