Re H (Parents with Learning Difficulties: Risk of Harm)

This is an appeal against care and placement orders made in respect of a child, referred to in this judgment as “H”, who is now aged 22 months.

H’s parents both have cognitive difficulties. Her mother has a diagnosed learning disability. Her father has difficulties but does not meet the criteria for a learning disability.

H has three much older brothers, whom I shall call “D” (now aged 23), “E” (19), and “F” (16), and a sister, “G” (13). All four have cognitive impairments.

The local authority has been heavily involved with the family since 2011. D, then twelve years old, with the cognitive function of a child half his age, was alleged to have inappropriately touched a five-year-old girl. With the parents’ agreement, D moved into local authority care. Since that time, he has largely lived away from the family home and now lives in supported accommodation. All four children were made subject to child protection plans until 2013 when they were reclassified as children in need.

Over the next few years, there were a number of referrals to the local authority’s children services raising concerns about the children, in particular their relationship with associates of the family, allegations of aggressive and sexualised behaviour on the part of E and F, and violence allegedly shown by D towards E. In September 2018, E, F and G were again made subject to child protection plans on the basis of risk of sexual harm, and the parents signed a working agreement under which the children were not to have unsupervised contact with D, and G was not to be left alone with any of her brothers.

In February 2019, the local authority started care proceedings in respect of D, E and F. At that stage, E appeared to be beyond parental control and the local authority was worried that the children were still spending time with D and adults known to present risks to children. In a series of therapeutic sessions, G made allegations about E and F. She said that they were “mean”, that they hit, punched and kicked her, that they went into her bedroom when she did not want them to, that they showed her their genitals in the woods and that she felt unsafe when her parents were not at home. She indicated with visual aids that E and F had touched her genitals. On 28 March 2019, G was made subject of an interim care order and she was placed in foster care.

On 10 July 2019, E dragged his mother from the bath to the landing and sexually assaulted her. On 12 July, E was made subject of an interim care order and a secure accommodation order. On 18 May 2020, all parties agreed that E was beyond parental control and on that basis he was made subject of a full care order.

On 11 February 2021, final care orders were made in respect of F and G. The care plans approved were for F to remain at home in his parents’ care and for G to stay in long-term foster care. It is important for the purpose of this appeal to note that findings in relation to G’s allegations about E and F were not sought by the local authority and HHJ Lopez rejected an application by G’s guardian to invite the local authority to seek such findings.

Meanwhile, the mother was pregnant again. A prebirth assessment concluded that she had the capacity to meet basic care needs but there were concerns about her ability to understand risk and to provide stimulation to a growing child. A Care Act assessment concluded that the mother was independent in all daily activities and did not meet the eligibility criteria for services from Adult Social Care.

On 19 March 2021, the mother gave birth to H, the subject of this appeal. Three days later, the local authority issued care proceedings in respect of the baby. On 24 March 2021 at a hearing before a district judge, she was made subject to an interim care order but remained at home with her parents under a working agreement. The case was allocated to HH Judge Lopez.

Over the following year, seven further interim hearings took place before the judge at which a succession of directions were given. During this time there were continuing reports of aggressive behaviour by F who was still living at home. But H was seen as developing well with age-appropriate behaviours. There were no concerns about the mother’s basic childcare and professionals observed emotional warmth and affection between mother and baby.

On 13 June 2022, fifteen months after the start of the care proceedings concerning H, a final hearing took place. The hearing continued for eleven days until 5 July, after which judgment was reserved and handed down on 8 September. Under the order made following judgment, the judge made care and placement orders and refused the mother’s application for permission to appeal. He directed that any application for permission to appeal be made by 4pm on 15 September and granted a stay of execution of the removal of H from her parents’ care until this Court had determined the mother’s application for permission.

On 15 September, the parents filed a notice of appeal to this Court. On 21 November 2022, I granted permission to appeal and extended the stay until the determination of the appeal. Thus, at this point H remains with her parents at home where she has lived all her life.

The judgment is the longest I can recall encountering in care proceedings. It extends over 138 single-spaced pages, 335 paragraphs and 85,000 words. Paragraphs 1 to 8 contain an introduction, the details of the parties, and the basis on which the local authority asserted that the threshold criteria under s.31 of the Children Act 1989 were satisfied. Paragraphs 8 to 49 contain what is described as a summary of the essential background of the case. In paragraphs 50 to 81 the judge sets out the law, including extensive quotation from 17 reported judgments and citation of a number of other authorities. Paragraphs 82 to 267, headed “The Evidence”, include what amounts to almost a verbatim account, or at least a very full record, of the evidence. This begins with a summary of the written evidence about the earlier care proceedings concerning E, F and G, in which, as the judge acknowledged, the local authority had not sought, nor the court made, any findings on the allegations, including the allegations made by G against her brothers. The judge then sets out the evidence of 17 witnesses, of whom 14 had given oral evidence, including several social workers and family support workers employed by the local authority, Mr Roger Hutchinson, a consultant psychologist who had carried out assessments of the parents during the earlier proceedings concerning the other children but had not been instructed to reassess them for the present proceedings, Dr Gabrielle Gregory, another psychologist who had carried out assessments of the parents in the current proceedings, Ms Bridie Steventon, an independent social worker who had undertaken a PAMS assessment of the parents, the mother, the father and the guardian. This is by far the largest section of the judgment and includes lengthy quotations from the written and oral evidence. Paragraphs 268 to 333 contain the judge’s analysis of the evidence and his reasoning, and the judgment concludes with the judge recording his ultimate decision.

I hesitate to criticise this experienced judge after the enormous effort he expended and the commendable diligence he showed in producing his judgment. I also bear in mind the axiom about pots and kettles. On any view, however, this judgment is far too long.

The law reports contain many lengthy judgments in care proceedings, but invariably they have involved issues about whether the threshold criteria were satisfied which necessitated analysis of complex and disputed evidence, often detailed medical evidence. It should be noted, however, that the parents in this case conceded that the threshold criteria under s.31 were satisfied. The issue for the court was therefore what order to make in the light of that concession. Once it is established that the threshold is crossed, there may be complex and finely-balanced issues about the appropriate order, and the judge will have to conduct the holistic balancing exercise of analysing the advantages and disadvantages of the realistic options – see Re H-W (Children) [2022] UKSC 17. But this latter exercise can generally be completed reasonably succinctly.

In those circumstances, a recitation of the evidence extending to in excess of 60,000 words is manifestly excessive. I note with some alarm the judge’s observation towards the end of his judgment (paragraph 332) that the court had “not referred to every aspect or detail of the evidence” but instead “focused on the principal evidence and the reasons for making its findings and decisions”. With respect to the judge, his recitation of the evidence extends far beyond that.

This Court has repeatedly emphasised the measured expectations of a judge when giving the reasons for his decision. A frequently cited example is the judgment of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at paragraph 115:

More recently, in the context of care and placement applications, Peter Jackson LJ in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407 at paragraph 59 gave this advice:

In the same passage, Peter Jackson LJ stressed the need for every judgment to have a structure. In that respect, the judge in the present case complied with the guidance. His judgment has a commendably clear structure. But its content is overwhelming.

In Re N-S [2017] EWCA Civ 1121, McFarlane LJ (as he then was) observed at paragraph 30:

More pertinently to this appeal, there is a danger that a judge who has failed to filter the evidence, and simply recited it verbatim in his judgment, may lose his own way when he comes to conduct his final analysis. It may be more difficult for the judge to stand back, identify the critical features and apply the level of scrutiny of the evidence that is required.

The agreed threshold set out at paragraph 7 was substantially in these terms:

The judge started his analysis at paragraph 268 by reminding himself again of some key legal principles – the burden and standard of proof, the principle that “a child should be raised by their parents or members of the extended family if it is safe and in the child’s best interest to do so”, and that a placement order is a draconian order which should only be made if the court concludes that “only adoption will do”. He accepted that H loves and is loved by both of her parents and that her mother is her primary attachment figure. Having summarised the evidence set out in detail earlier in the judgment about the parents’ learning difficulties, he stated that:

He then identified three “realistic” options for H’s future care – placement with her parents, long-term fostering or adoption, reminding himself of the requirement, established by the case law cited earlier in the judgment, to carry out a global evaluation of H’s welfare taking into account all of the negatives and positives of each option.

The judge then summarised the conclusions of the professional witnesses. Of Ms Steventon’s PAMS assessment, he said:

The judge then turned to the opinion of Mr Hutchinson. Like the other professional witness, it was his view that the older children had “experienced adverse childhood experiences” in their parents’ care. The judge continued:

Next, the judge set out the advantages and disadvantages of the three options, starting with remaining in her parents’ care. He stated:

The judge then turned to the risk of harm. He reiterated that there had been no findings on any allegation of sexual abuse and that the court “has not, therefore, dealt with the same as if the allegations were proven fact”. He continued:

He observed that there was a wealth of evidence collected over many years that “the risk of harm to a child in the care of these parents is multi-faceted and deep-rooted”, that the parenting to the older children had been “neglectful and harmful”, and that the parents had been unable to establish and maintain boundaries. He observed that, during their oral evidence, it had become clear that neither parent had any understanding or insight into what had gone wrong in their care of the older children. He then referred to “numerous examples of F’s behaviour posing a risk to H”, reciting some occasions and concluding:

Having set out the advantages and disadvantages of long-term fostering and adoption, he then, “for the avoidance of doubt”, addressed the six questions which Peter Jackson LJ in F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761 at paragraph 2, and again in Re K (Children: Placement Orders) [2020] EWCA Civ 1503, had suggested should be asked by the court when assessing risk of future harm and setting it in context, namely:

In answering the first question, the judge observed that the risk of harm to H if she stayed with her parents, was:

The judge answered the second and third questions by reiterating the “significant adverse childhood experiences” of the older children, the “wealth of evidence” that the parents had not changed, and the consequences that they would be “increasingly unable to meet her global needs”. As to the fourth question, he noted that it would be possible for the local authority to provide training and guidance, that the view of the professionals save Mr Hutchinson was that this would not be successful so as to reduce risk, that work to date had not brought about any change, that even Mr Hutchinson accepted that in the light of their cognitive difficulties any training or guidance would have to be provided repeatedly, and that:

Six grounds of appeal were put forward on behalf of the parents.

Under s.31(2) of the Children Act 1989,

The interpretation of these criteria is now well established having been considered by the House of Lords, and subsequently the Supreme Court in a series of cases – Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] 1 AC 11 and Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678.

In the last-named case, Baroness Hale of Richmond, giving the judgment of the court, distilled the established principles into three propositions:

Once it is established by applying those principles that the s.31(2) threshold criteria are satisfied, the court must decide what order to make. In doing so, it must have regard to the provisions of s.1 of the Act, including the so-called “welfare checklist” in s.1(3). The checklist includes, under s.1(3)(e), “any harm which [the child] has suffered or is at risk of suffering”. An identical provision is contained in the checklist in s.1(4) of the Adoption and Children Act 2002 of factors to which the court must have regard whenever coming to a decision relating to the adoption of a child, including whether to make a placement order. In Re B, supra, Baroness Hale, in a judgment with which the other members of the House agreed, expressly endorsed the interpretation of s.1(3)(e) of the 1989 Act advanced by Butler-Sloss LJ in Re M and R (Minors) (Child Abuse: Evidence) [1996] 2 FLR 195. At page 203 E to G, Butler-Sloss LJ had said:

At paragraph 59 of her judgment in Re B, Baroness Hale explained the rationale for these principles in these terms:

On behalf of the parents on the present appeal, Ms Cavanagh submitted that the judge had gone astray in his analysis of the future risk of sexual harm to H. At the outset of his exposition of the evidence, he had recited the history of the allegations made by G against her brothers E and F, noting in doing so that there had been no findings about those allegations in the earlier proceedings. It would have been open to the local authority to seek findings about these allegations in the current proceedings but it chose not to do so. The court had no proven or admitted factual foundation upon which to base a conclusion that the older brothers pose a sexual risk to H. At its height, it remained a mere possibility. In those circumstances, it had been wrong of the judge to rely on what the parents had said about the possibility during their oral evidence. The fact that the parents accepted the possibility in their oral evidence did not elevate it to the level of risk within the meaning of s.1(3)(e). Furthermore, the judge’s analysis of the risk of sexual harm by F to H failed to take into account the fact that F was about to move out of the house. Ms Cavanagh acknowledged that it was an agreed fact that the mother had been sexually assaulted by E and that this did provide an evidential foundation for a finding of risk of sexual harm to H. However, the judge failed to take into account the fact that E is now rigorously supervised by professional staff at all times when he has contact with his family and is not allowed into the home.

Ms Cavanagh submitted that the judge’s reliance on the opinion of Ms Steventon and Dr Gregory was undermined because they had proceeded on an incorrect assumption that there was an established risk to H from her older brothers. In her report, for example, Ms Steventon had stated that H was “a young baby whom is being exposed to those who pose a risk of sexual harm to her every day”.

In Re D (A Child)(No.3) [2016] EWFC 1, [2017] 1 FLR 237, the obligation on the state to provide such support as will enable a child to remain with her parents was identified as an aspect of the State’s positive obligation under Article 8 of ECHR. In addition, there is a statutory duty under domestic law. Under s.17(1) of the Children Act,

In his exposition of the law, the judge had quoted a passage from the judgment of Gillen J, as he then was, sitting in the Family Division of the High Court of Justice in Northern Ireland, in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, cited by Sir James Munby P and set out as an appendix to his judgment in Re D, supra. Gillen J’s observations and insights are of profound importance to any court hearing a children’s case involving a parent with learning difficulties. Of particular relevance to this appeal are the following passages from paragraph 5:

In Re D, the President observed:

Ms Cavanagh submitted that, although the judge cited these dicta, he erred in law in accepting evidence from the local authority and the guardian that the extent of long-term support that would be required is far in excess of that which the local authority can reasonably be expected to provide. There is no blueprint of support for a disabled adult – it is needs led. In addition to its duties under the Convention, the local authority’s statutory duties extended not only to the child but also to the disabled parent under s.17A of the Children Act and under s.1 and 2 of the Care Act 2014. In order to carry out a proper evaluation of the option of H remaining with her parents, the judge needed to identify precisely the package of support that might be provided by the local authority under its statutory duties. He ought also to have assessed how that care would be experienced by the child and how any adverse experiences could be mitigated. Absent this, the internal advantages or disadvantages of the placement options cannot be accurately considered, and the side-by-side comparison cannot be a fair or accurate process.

Ms Cavanagh cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050:

Ms Cavanagh also cited from the “Good practice guidance on working with parents with a learning disability”, which was quoted by the judge in a footnote to paragraph 158 of the judgment, and was originally published in 2007 by the Department of Health and the Department for Education and Schools and most recently updated in July 2021 by the Working Together with Parents Network:

Ms Cavanagh submitted that the exercise required by the Supreme Court’s decision in Re B and this Court’s decision in Re B-S was absent from the judgment in this case. She submitted that the judge’s finding that the level of support which would be required to keep H in her parents’ care was “far in excess of that which would be in H’s welfare best interests” and “far in excess of anything that the local authority could be reasonably expected to provide” was made without any proper analysis, let alone the rigorous scrutiny required by Re B-S. Without undertaking a process of determining what a care plan at home would look like for H and how that would likely be experienced by her, it was not possible nor fair for the judge to conclude that the level of intervention was “not reasonable, sustainable or in H’s welfare best interests”. Instead of carrying out such an analysis, the judge asserted that the outcome would be “substituted” or “corporate” parenting, which he defined as meaning “parenting in which a significant part thereof is undertaken not by the family but by the professionals”. But contrary to the Guidance cited above, nowhere did the local authority or the judge identify what facets of parenting would be carried out by professionals or analyse the weight and likelihood of the risk that H would be harmed by that level of support and the options that had been or might be considered to address, reduce, or remove that risk. This should have been a central feature of the analysis of the option of H remaining in her parents’ care.

In his original assessments in 2020, Mr Hutchinson had advised that both parents required psychoeducational work to enable them to understand the nature of any potential sexual risks to the children. This work has not been carried out. In the current proceedings, Mr Hutchinson and Dr Gregory agreed that the work which had been carried out would be unlikely to have made any difference. Further work proposed for the parents and for F in 2020, including a safety plan for the children at home, had also not been provided. Contrary to the principle stated by the President in paragraph 29 of Re B-S, the local authority had failed to provide the necessary support which may have led to a less interventionist outcome for the child.

Ms Cavanagh submitted that the failure to provide the correct services, education and a structured written safety plan to the family unit was a central plank of the appellants’ case. As indicated by Peter Jackson LJ in Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, it was necessary for the lower court, when evaluating the risk of future harm arising to H, to evaluate the steps that could be taken to reduce the likelihood of the harm arising or to mitigate the effects if it did. The learned judge did not engage with this central point made on behalf of both parents in the testing of the oral evidence and in their submissions.

Under these grounds, it was submitted that the judge did not adequately evaluate the placement option with the parents. A number of important matters were not taken into account or adequately addressed, including:

It was submitted that the overall proportionality exercise conducted by the judge was inadequate. His reasoning failed to take into account all of the factors in favour of a placement at home and failed to analyse fully some of the factors that were perceived to be disadvantages of that placement.

On behalf of the local authority, Mr Stefano Nuvoloni KC leading Ms Louise Higgins submitted that the judge had clearly and demonstrably identified the risk and its likelihood, carefully considered how that risk could be mitigated, and concluded, on the evidence before him, that any such mitigation would be ineffective to avoid the risk of significant harm. He had then conducted the appropriate welfare analysis, concluding, as he was entitled to do on the evidence, that adoption was in H’s best interests both at the time of the making of the placement order and throughout her life.

With regard to ground 1, the judge had not fallen into error by applying an inappropriate weight to allegations that the court had not found as fact. Instead, he had made it clear that the evidence of the parents as to their own views about sexual risk posed by the older siblings was the relevant factor. In those circumstances, he was not only entitled but required to assess whether that likelihood of risk can be deflected by the parents. The parents had conceded that they were currently unable to protect their children and there was clear evidence that they would not be able to do so for H’s minority without the high level of support identified. Mr Nuvoloni emphasised that the likelihood of risk of sexual harm was but one element of the agreed threshold and the parents’ inability to protect against this particular risk was only part of the likelihood of significant harm and therefore only one facet with which the parents would require long term support. In oral submissions, Mr Nuvoloni submitted somewhat faintly that it would be open to this Court to carve out the conclusions as to the likelihood of sexual harm and uphold the order on the basis of other risks. For my part, I am not at all persuaded that this would be possible. The balancing exercise would have been conducted completely differently if the sexual abuse issue had been disregarded. In any event, in the absence of a respondent’s notice, this was not an argument which could properly be pursued.

With regard to ground 3, Mr Nuvoloni pointed out that the judge’s conclusions were based upon the evidence of professionals who had given evidence specifically on the issue of the support the family would require in parenting H. He was entitled to rely on that evidence, and the discussion and balancing of the evidence in the concluding section of the judgment demonstrated that there was no failure of analysis. In respect of ground 4, Mr Nuvoloni simply pointed to the extent of the opinion evidence put before the judge about the work that had been undertaken with the parents. There was no evidence upon which he could base any reasonable expectation that any work with the parents could address their inabilities to provide adequate parenting to H.

As for the remaining grounds, Mr Nuvoloni was content to rest his case on the judgment. He submitted that the judge had carried out a proper assessment of the advantages and disadvantages of each option, and reinforced his assessment by cross-checking it against the framework proposed by Peter Jackson LJ in Re F. He recognised H’s needs as developing over time. It was the parents’ inability, as identified by expert assessment and accepted by the court, to develop their parenting sufficiently to provide good enough parenting that was the issue. The range of unknowns in respect of F’s future had to be set against the evidence that the parents are unable to manage his behaviours.

These arguments are substantially in line with those advanced in written submissions by Ms Kirsty Gallacher on behalf of the guardian. Ms Gallacher emphasised the comprehensive summary of the evidence carried out by the judge, in particular the evidence of risk, and submitted that he was entitled to rely on the consensus of opinion amongst the experts and other professional witnesses. Like Mr Nuvoloni, she contended that the judge was entitled to consider the parents’ own evidence in respect of what risks may be posed by the older children and wider family. She too stressed that the risks were not confined to sexual abuse and pointed to the judge’s analysis of the evidence in respect of the wider harm suffered by the older children and how he applied that to H. The judge properly considered the parents’ respective difficulties, what additional support may be required and whether that could ameliorate or minimise the risks to H. He gave himself a proper direction as to the treatment of parents with learning difficulties and adopted that approach when conducting his analysis of the evidence. He conducted a comprehensive review of the evidence, including that given by the guardian, about the support required and what the high level of intervention would mean for H. Ms Gallacher stressed that the guardian’s evidence did not simply turn on the phrase ‘substituted parenting’. On the contrary, the guardian had carefully considered the level of support and intervention and daily monitoring that she concluded would be required to keep H safe now and in the long term and what impact that may have on H. The judge had been entitled to conclude that for H to remain in her parents’ care would require a very significant level of involvement throughout her minority, the local authority would have to undertake work repeatedly with the parents, and that the significant involvement of the local authority and all the work undertaken had not prevented the adverse childhood experiences of the older children.

In my judgment, the appellants’ submissions are cogent and persuasive, and the appeal should be allowed.

S.1(3)(e) of the Children Act and s.1(4)(e) of the Adoption and Children Act 2002 require the court to take into account any harm which the child is at risk of suffering, not is possibly at risk of suffering. As this Court in Re M and R made clear, in passages subsequently endorsed by the Supreme Court, before a court can take into account any harm which the child “is at risk of suffering”, the risk has to be established on the basis of proven fact, not a mere possibility. Despite the very clear warnings the judge gave himself that the various allegations of sexualised behaviour and abuse between the older children had not been proved, he nevertheless proceeded on the basis that H “is at risk” of suffering sexual harm.

In this case, save for the incident when the mother had been assaulted by E, there was no proven fact relating to sexual abuse or sexualised behaviour. The fact that the local authority had “concerns” was insufficient to establish the risk. Thus the finding in the threshold document that the parents had accepted in the earlier proceedings concerning E, and G that they:

The judge thought it was permissible to rely on the parents’ acceptance in evidence that it was possible that D and F posed a sexual risk to H. But such a concession would never obviate the need for a proven factual basis to establish a risk of future harm. In this case, the error is compounded by the fact that both parents have cognitive difficulties and, in the mother’s case, a diagnosed learning disability. In those circumstances, there was even less justification for attaching any weight to their statements in evidence as to the possibility of future risk.

It is of course possible that the local authority might be able to prove facts which would be sufficient to establish that there is a risk of sexual harm to H. But a mere possibility is not enough. As Baroness Hale said in Re B at paragraph 59:

Mr Nuvoloni is of course right to say that the likelihood of risk of sexual harm was but one element of the agreed threshold. But it was plainly the central element. If there had been no suggestion of such a risk, it seems much less likely that the local authority would have pursued, or that the court would have approved, a plan for the removal of H from home.

For those reasons I would allow the appeal on ground 1.

As the case law makes clear, there is an obligation on a court to enquire carefully as to what support is needed to enable parents with learning difficulties to show whether or not they can become good enough parents. A local authority cannot press for a plan for adoption simply because it is unable or unwilling to support the child remaining at home. A judge must therefore be rigorous in exploring and probing the local authority’s thinking in cases where it may be affected by resource issues. Support for parents with learning difficulties may have to be long-term, extending throughout the child’s minority, in part because parents with cognitive difficulties, even if they understand the information they have been given, may find it difficult to retain it or to apply it as the child gets older, but also because, as the child gets older, her needs will evolve and the range and level of support and guidance required by the parents must evolve alongside. Judges need to be wary of arguments based on the concept of “substituted parenting”. They should carefully scrutinise the evidence adduced by the local authority that the level of support required by the parents would be on a scale that would be adverse to the child’s welfare and should look for options for ameliorating the risk of harm that might result from the high level of support. It is all encapsulated in the simple sentence in paragraph 1.4.4 of the Guidance quoted above – “every effort should be made to support not supplant the parents”.

In my view, although the judge recited substantial passages of the evidence, he failed to subject it to the degree of rigorous scrutiny required in these circumstances. Although he quoted the full passage from Gillen J’s judgment in Re G and A, he regrettably failed to apply the principles derived from it. He regarded it as a relevant disadvantage that the local authority would have to maintain an (undefined) “high level of support and intervention in the family for many years to come” without seemingly taking into account that the provision of support is a recognised requirement for parents with learning difficulties. He accepted the assertions that the level of support which would be required to keep H in her parents’ care was “far in excess of that which would be in H’s welfare best interests” and “far in excess of anything that the local authority could be reasonably expected to provide” and that the basis of the level of support would equate with “substituted parenting” without spelling out (1) what aspects of parenting would be carried out by professionals, (2) the extent of the risk that this degree of professional intervention would result in further harm to H, or (3) the steps that could be taken to mitigate the risk. He concluded that the level of support would be “unsustainable and impracticable” without explaining why.

In the interests of the child, the starting point should have been, first, to identify and describe the level of support needed by the family, secondly ascertain what can and should be being done under the local authority’s obligations, and thirdly to determine whether, with that in place, the child’s welfare needs will be met. This involves a careful assessment of what the package would look like, how practical it is and how intrusive it would be for the child. That process was simply not carried out in this case.

Part of the judge’s reasoning was that, despite the efforts of the professionals, the parents’ capacity to meet the children’s needs had not improved and there was no basis for thinking that it might improve in future. But assertions that the parents had failed to benefit or respond to attempts to support them in the past had to be considered in the light of the acknowledged failure to provide the psychoeducational and other work recommended by Mr Hutchinson in 2020. Given that omission, it cannot be said that every effort had been made to support the parents.

Furthermore, the judge did not sufficiently acknowledge that any assessment of the degree of support required by the parents, and the risks to H resulting from the degree of professional involvement in her life, had to be undertaken in the context of the current circumstances of the family. Many of those circumstances pointed positively to an outcome under which H could safely stay with her parents. She is now rising 2, has always lived at home, and has a close attachment to her mother. There is a professional consensus that she has been well cared for in many respects up to now. Unlike her siblings, she seems to have no cognitive impairment and is meeting her developmental milestones. F will shortly be moving to semi-independent living. After that, H will be the only child at home and thus the sole focus of her parents’ care.

Taking these points together, I conclude that the appellant also succeeds on grounds 3, 4 and 6. The proportionality evaluation cannot stand. Despite his great industry, the judge’s analysis was insufficient to entitle him to reach the conclusion required by the case law, in particular Re B, that nothing else but adoption will meet the welfare needs of the child.

For these reasons, I would allow the appeal, set aside the care and placement orders, and remit the matter to the Family Division Liaison Judge for the Midland Circuit to reallocate the proceedings to another judge as she considers appropriate. In proposing that this appeal be allowed, I emphasise that I am not intending to indicate what the ultimate outcome of these proceedings should be. It will be a matter for the next judge (1) to consider whether there should be and, if necessary, conduct a fact-finding hearing to establish the factual basis for an assessment of the likelihood of future harm and (2) on the basis of those findings, to carry out a fresh analysis of the realistic options for the child’s future care.

I agree. I add some brief observations on ground one. One should always be cautious of deciding a case on the basis of concessions, particularly when they are made by vulnerable individuals. In this case the concessions on which the Judge relied were not enough to meet the threshold, even taken at their highest. The parents had conceded only that if the allegations of sexual touching were true then H would be at risk of harm; and that it was possible those allegations were true. Those concessions were not capable of establishing the necessary factual basis for a finding that there was (rather than might be) a real possibility of future harm.

I agree with both judgments.