Judging care proceedings – ‘it’s not what you do it’s the way that you do it’

KEYWORDS:

• Care proceedings
• grounds for appeal
• proportionality
• delay

In Re H-W [2022] UKSC 17 the Supreme Court examined the standards for decision-making and proportionality in care cases, revisiting an area thoroughly considered in and after Munby P’s decision in Re B-S (Children)(Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146 and creating a bright line for the test for appeals. In a single judgement, it held that it was no longer enough for judges to do the right thing i.e. not be wrong, they must now make decisions in the right way. Failure to consider all the court’s powers (Children Act 1989, s.1(3)(g)), comparing each option, holistically, with all the others as set out by McFarlane LJ in Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 was fatal. There were no allowances for experience of first instance judges, extempore judgements or the pressure of making decisions in the family court. At a stroke the Supreme Court imposed a more stringent test for proportionality in care cases; a decision could only be upheld where the judge’s reasoning fully explained why all other options for mitigating risks and securing welfare, not just realistic ones, have been rejected. Decision-making was not only about substance but also structure and form (cf Munby P in Re R (A Child) [2014] EWCA Civ 1625, paras 18 and 68).

A summary of the facts

There was a long history of neglect and sexual abuse in the mother’s extended family. In care proceedings in 2013, her son, A, was found to have abused her daughters B and C, and F2, the father of her youngest daughter, E, was found to have had a sexually abusive relationship with the mother, starting in her early teens. The court made a care order for A who was and placed in foster care; residence and supervision orders for B, C, D and E, who remained with their mother. F2ʹs application for residence of E was rejected and an injunction made preventing him entering the family home. Although the supervision orders expired in 2015, the local authority remained involved with M and her current partner, F3. In 2016, there were care proceedings in respect of F3ʹs children who, with the exception of G, were living with their mother; G was made subject of child arrangements and supervision orders to live with F3, but the placement broke down and G went into care. The local authority conducted family assessments in 2016/17 but M did not tell them that she had taken B for a week’s holiday with F2, where they had all shared a chalet, information that only emerged in the latest care proceedings. Child protection plans for neglect, made in 2018, were replaced with ‘Child in Need’ plans in Spring 2019. The local authority closed the case at the end of October 2019 but less than a week later a series of events including A’s return to the family home, his abuse of E witnessed by B and the mother’s delay in informing the local authority resulted in another child protection conference and then care proceedings. Despite B moving to relatives and E making further allegations about A, the Supreme Court regarded the family unit as ‘relatively stable’ during this four month period (para 10).

The decision at first instance

Following hearings totalling 15 days, the circuit judge gave a 32 page, extempore judgement, correctly stating the law, fully evaluating the evidence and granted care orders for the three children on care plans to place them, separately, in long-term foster care. In doing so, he accepted the fully reasoned recommendations of the local authority social worker, expert and children’s guardian that only care orders would protect the children from risk of harm and ensure that their needs for reparative parenting were met. He refused leave to appeal but granted a stay, which continued throughout the subsequent litigation. The Court of Appeal granted the mother leave to appeal but upheld the decision by a majority, Peter Jackson LJ dissenting. The Supreme Court allowed the appeal and remitted the case for rehearing, hoping that this case which had already taken 28 months could be reheard quickly.

Appeal to the Supreme Court

The Court was satisfied with the statements of law and application of the threshold test but concerned that the judge had not fully considered the court’s powers. At the request of the court, counsel for the appellants listed a myriad of other possible arrangements for the children’s future care, all but two of which (care or supervision orders) excluded any role for the local authority, leaving the children’s protection to the mother and possibly F3. Protection afforded to C, D and E by two other options (prohibited steps orders or injunctions) depended solely on enforcement action by the mother. Another option was suggested by counsel, placing the children at home on care orders, even though this is only available with the local authority’s agreement. Parliament allocated placement decisions to local authorities and regulations (2010 S.I. 959, reg 18) require the approval of the Director of Children’s Services (or a nominee) for ‘home placement’. In these circumstances counsel’s suggestions could not be seen as ‘realistic options’ to be considered holistically under the test in Re B-S. Nevertheless, the Supreme Court noted that the social worker had failed to consider the potential effectiveness of injunctions against A and F2, and opined that the judge had proceeded too directly to making care orders. It imposed a new test for determining proportionality which requires judges to give fully reasoned accounts which explain how all the potential arrangements and orders mitigate the risks to the children and their welfare.

Despite the established rule that appeals are allowed where the decision was wrong (G v G (Minors: Custody Appeal [1985] 1 WLR 647 HL; Pigowska v Pigowski [1999] 1 WLR 1360 HL), there has long been a problem of consistency in the Court of Appeal’s approach to cases where the family court is exercising discretion. The Supreme Court has not solved this problem but has created a bright-line rule, which will make it easier to justify allowing appeals. There is no longer a need to consider whether the judge was wrong in weighing the proportionality of realistic options or assessing welfare: decisions where all options are not considered holistically are wrong.

The consequences of Re H-W can be predicted: an increase in appeal applications, increased pressure on the family court and on family judges, and even longer waits for decisions for children and parents. Following Re B-S, the number of family appeals to the Court of Appeal doubled from 40 in 2012 to 96 in 2013, reaching a peak of 132 in 2016 (RCJ Annual Statistics, table 3.9). The number of appeals from magistrates and district judges to circuit judges is not published. Most appeals in care cases are by parents, not local authorities; the new standard will provide a rich seam for counsel parsing judgements for defects, with parents’ willingness to face a rehearing being the main constraint. Not only will the Court of Appeal feel the pressure, so will circuit judges both in preparing their own judgements and considering appeals. Successful appeals (and on the new test there will be more) usually result in a rehearing, adding to the pressure on the family court, where fewer than one fifth of care cases are currently completed within the statutory time limit of 26 weeks (National Statistics 2022). Case duration will increase as judges seek to avoid appeals through carefully crafted judgements. For children, justice delayed is justice denied as time with parents and kin carers or other placement options are lost. Requiring even better judgements will not increase justice but reduce it. Family justice needs judges who are able to get decisions right first time, not rules which make it easy for appellate courts to find fault.

Local authorities will also feel the pressure. Social workers will need more training because the Supreme Court expects them to be well-versed in private law orders, which local authorities can neither seek nor enforce. More resources will be expended on appeals and rehearings rather than on services for children and families. Whereas local authorities could and did reduce their use of adoption in response to Re B-S, (Masson 2017) the solutions within their control to the problems created by Re H-W are reducing care applications and recommending more supervision orders, which are less likely to be appealed. From a court perspective, this may seem like a win-win solution, reducing both applications and appeals, solving what Munby P termed in (2016) The care Crisis. However, such policy decisions have major implications for child protection, which the Supreme Court is simply not equipped to make. Whilst Eileen Munro’s Review of Child Protection (2011) made the case for a child-centred system, which values professional expertise as a way of improving child protection practice, the Supreme Court has focused on procedural compliance as the means of improvement. It has concluded that decisions can only be right and orders proportional where the judge has complied with its explanatory process.

Disclosure statement

No potential conflict of interest was reported by the author(s).