The Court of Appeal has set aside a court order that a girl should be returned to her mother rather than stay with foster parents.

The girl was 18 months old and was referred to in court as X. Her mother had agreed to X being accommodated with foster parents when she was three days old. The mother had seven other children who were the subject of care proceedings.

The local authority applied for a placement order in respect of X. The options were care and placement orders or X being cared for by the mother.

A social worker had reported that the mother would need an intensive package of support if X were returned to her care. The judge heard evidence from the mother, two social workers and the guardian.

The social workers supported the local authority’s plan for adoption, but the guardian noted that it was a finely balanced case and recommended that the hearing be adjourned to enable the local authority to prepare a support and rehabilitation plan.

Before addressing the welfare checklist and without balancing the proposed care options, the judge concluded that the mother could parent X with appropriate support and a comprehensive support plan.

He held that adoption was a draconian order of last resort and “something else would do”.

The judge determined the care proceedings by rejecting the local authority’s care plan for adoption and concluded that X should be restored to her mother’s care.

The Court of Appeal has set aside that decision.

The court noted that all the parties involved had not agreed the threshold for making a care order before the hearing, but the judge proceeded on the basis that the threshold criteria had been crossed, which was not satisfactory.

Either the facts which established the threshold had to be agreed or they had to be determined by the court. The judge rejected adoption before his analysis of the welfare checklist. The judgment did not contain any comprehensive evaluation of the positives and negatives of the two competing options, which was required in every case

As a result of his rejection of adoption before he had undertaken any welfare analysis, he did not analyse the pros and cons of each option.

The absence of any clarity as to what package of support would be available to the mother meant that the judge was not able to carry out the required balancing exercise. The order was set aside because the judgment did not contain the required analysis.

The case was remitted for a rehearing.

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Case Citations: R (A Child), Re Court of Appeal (Civil Division) [2021] EWCA Civ 1019 Moylan LJ; Baker LJ; Nugee LJ

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