Local authority claim that district judge did not reach “reasoned decision” had no prospect of success, Family Court finds

In K (Child: Placement options: Concurrent planning), Re [2024] EWFC 98 (B) (07 May 2024), His Honour Judge Moradifar concluded that the council’s appeal, which argued DJ Harrison failed to reach a “reasoned decision”, had no prospect of success. 

The case concerned a mother and her two children, K (the subject of the appeal) and his half-sibling L, who were removed from the mother's care in November 2022 after the council secured interim care orders. 

Subsequently, they were placed with family members who were unable to offer K a long-term placement, leading to the separation of the children in March 2023, when K was once again placed in foster care. 

The mother was subject to assessments that identified "deficits” in the her parenting and the need for her to undertake long-term work before the children could be returned to her care.

Ahead of the final hearing, the local authority's plan for L was the continuation of his placement with the family members pursuant to Special Guardianship Orders. 

The local authority meanwhile planned for K to be adopted with annual 'letterbox' contact with his mother and L. The local authority also proposed exploring the possibility of annual direct contact with L, which was to be the subject of a risk assessment. 

However, by the first day of the final hearing the local authority had amended its care plan for K, providing an alternative but concurrent plan which proposed to look for both adoptive and foster placements.

In an ex tempore judgment, the district judged granted special guardianship orders in respect of L, made no order on the local authority's application for a placement order and approved a care plan for K placing him in foster care pursuant to a final care order. 

The council later applied to appeal the district judge's decision on the following grounds:

1. The district judge failed to reach a reasoned decision on the comparison between the two placement options that was based on reliable evidence and not the speculative approach of the judge,
2. The judge was flawed in her application of the checklist as set out in s 1(4) of the Adoption and Children Act 2002 (the "Act"),
3. The judge erred in dismissing the possibility of making a contact order with a placement order by stating the court was unlikely to wish to bind the adopters against their will. 

The council submitted that the district judge failed to give appropriate weight to the evidence from an independent social worker about the changing attitudes to post-adoption contact, placing undue weight on the concerns that direct post-adoption contact was unlikely to be forthcoming which might limit the pool of available adopters if an order for contact was made thus erring in the application and interpretation of s 26 of the Act.  

The local authority also submitted that DJ Harrison was wrong to infer that the more recent deterioration in K's circumstances and presentation would make adoption a less likely option if the Child Permanence Report were updated to include his current circumstances.

Finally, it added that the district judge's reliance on broad understandings and analytical data about the stability of an adoptive placement compared to long-term foster care was flawed and that she was duty-bound to make further enquiries about the same. 

The mother and the guardian both opposed the appeal, characterising it as "lacking in merit". 

They each argued that the criticism the council levied against the district judge was "ill-conceived" and that not only was she entitled to reach the conclusions that she did, but she was correct to do so on the evidence before her. 

They also claimed that in the circumstances of the case, adoption was not a realistic option. 

The mother and the guardian submitted that it was the local authority's failure to adduce the necessary evidence that it now sought to use to highlight the evidential difficulties that erode the integrity of the judge's reasoning. 

Finally, they argued that the local authority's application and proposed appeal were founded on nothing more than a disagreement with the judge's decision, and the appeal had no merit whatsoever.

In dismissing the council's appeal, HHJ Moradifar found that the district judge’s judgment was “detailed and comprehensive”.

He added: “It is important that the judgment is considered in its totality and not dissected into its smaller constituent parts. When read as a whole, it is clear to me that the Judge was fully engaged with the issues of necessity, proportionality and legality of the proposed plans. In considering these issues she properly addressed the evidence that has informed her findings as well as recognising and considering the important features of each of the options.”

HHJ Moradifar said that “whether the plans are concurrent or in the alternative, the court remains under a positive duty to engage with the issues that I have set out above in order to first identify the realistic options before deciding which of those will best meet the welfare needs of the subject child.

“The concurrent plans that were before the Judge were each of a vastly different nature with significant differences in their suitability to meet K's long term needs. The essence of the local authority's argument is that the Judge should have left both options open as a suitable outcome for K and to permit the local authority to explore both notwithstanding significant difference in the two options and the properly founded concerns of K's guardian.”

However, HHJ Moradifar said that, in his judgment, the premise of local authority's case on appeal was “manifestly flawed, presenting a fundamental misunderstanding of the judge's reasoning and the positive duty that is placed upon her to engage with the issues….”.

Furthermore, not only was it properly open to DJ Harrison to reach the conclusion that she did, “but it was also the only proper conclusion that she could reach on the evidence that was before her”.

HHJ Moradifar also sought to address “some of the more pertinent issues” that arose in this case.

He said: "There is some evidence of a welcome sea change in the professional and social attitudes to adoption and the preservation of the appropriate familial links in the post-adoptive landscape. 

"These changes are at their infancy and I have no doubt that there is a great deal more that we should learn going forward. 

"In my judgment, when dealing with such cases, judges are entitled to take into account of the broader social and professional barometer."

HHJ Moradifar did note, however, that each case must be decided on its own unique facts and that general assertions about social norms "serve no more than to provide some relevant background". 

He added: "Where the more precise statistical data is relevant to the facts of a particular case, it is the duty of the party who seeks to rely on those to bring those to the court's attention. 

"Where a judge identifies the importance of such data, the judge may invite the parties to address the court on those issues." 

The judge found that there was nothing in the case that would have placed such an expectation on the district judge. 

"She was entitled to observe the broad well known differences between the two proposed plans," he said. 

"Her refusal of the local authority's application for a placement order was based on a number of factors that she weighed into the balance which included the importance of the links between the siblings and their mother."

HHJ Moradifar meanwhile commended the social work team for its flexible thinking by seeking to find the best options for K. “The challenges for those who work in the family justice system can also be its reward. The expectations of the professionals are high. They are called upon to find solutions to highly complex human and social conundrums.”

He went on to note that the case highlighted that when planning the future of a child, "it is crucial that the care plans are clear, concise and readily understandable".

He said that care plans must address the details of the necessary steps and expected time scale for implementation of each of the options and must be unambiguous about the status of its proposals by identifying if these are parallel plans, alternative plans or plans for contingencies.

"It is also crucial that care plans and the evidence that informs them are provided to the parties on sufficient notice so that any ambiguities or other issues can be identified and addressed before the court begins to hear evidence," he added. 

The judge criticised an "inordinate delay" in resolving the case, however. 

"Although, I am grateful to the local authority for confirming that it has implemented the approved care plan and has continued its searches for a long term foster care placement for K, this case highlights the need for appeals in such circumstances to be dealt with swiftly," the judge noted. 

Adam Carey