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

Abstract

In Re H-W [2022] UKSC 17 the Supreme Court examined the standards for decisionmaking 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