The Court of Appeal has allowed a mother and father to appeal a placement order for their baby leading to an adoption after it found a judge in a lower court had not taken the parents’ significant efforts to improve their situations into account.

The judgment is a must-read because it highlights, in technicolour, exactly how the system fails parents. It also offers a very good reminder of how judges must apply the threshold criteria of ‘risk of significant harm’ when considering care orders, which begins at paragraph 16 of the judgment.

The case includes all the usual suspects:

  • No secured access to legal representation (two very good barristers it seems step in at the last minute from Advocate [formerly the Bar Pro Bono Unit] and fight hard for the parents)
  • Outdated assessments of parents being used when updated information — which works in their favour — is available
  • Disregard for the parents’ substantial efforts in improving their circumstances,
  • Missing transcripts of evidence in the case and,
  • Failure by the lower court judge to apply the law properly.

The judges in the Court of Appeal also offer a helpful checklist for cases in which a placement order is being requested:

(1) Are the threshold conditions under s.31(2) CA 1989 satisfied, and if so, in what specific respects?

(2) What are the realistic options for the child’s future?

(3) Evaluating the whole of the evidence by reference to the checklist under s.1(4) ACA 2002, what are the advantages and disadvantages of each realistic option?

(4) Treating the child’s welfare as paramount and comparing each option against the other, is the court driven to the conclusion that a placement order is the only order that can meet the child’s immediate and lifelong welfare needs?

There is an excellent summary of this case on LexisNexis for subscribers. The first section of the summary is added below:

“The Court of Appeal, Civil Division, allowed the appellant parents’ appeal against a Family Court judgment which had resulted in a placement order in respect of their 18-month-old son, E.

The court held that the judge had failed to engage with the parents’ oral evidence of several changes in their circumstances, namely, that the father had abstained from drugs, undertaken therapy, and held onto paid employment.

Rather, the judge had compromised his ability to undertake an assessment of future risk by almost entirely focussing on residential assessment reports and social workers’ witness statements from 12 months prior to the hearing.

The judge had also fallen into error by conducting his entire evaluation of the proposal that E should be placed with his parents within the context of s 1 of the Children Act 1989. Given the presence of adoption in the range of realistic options, s 1(1) of the Adoption and Children Act 2002 had also been relevant.

Further, by ruling out placing E with his parents as a realistic option prior to an evaluation of adoption, the judge had adopted a linear approach in which he had disregarded the former option on its own internal de-merits and had not weighed up both options against each other.”

The judgment can be accessed for free on BAILII: Re B (a child) (placement order: adequacy of reasons)