A (A Child), Re [2025] EWCA Civ 424

[2025] EWCA Civ 424Case No CA-2024-002658
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM THE FAMILY COURT AT MANCHESTER
RECORDER HOWARD
MA23C50723
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 April 2025
Before
LORD JUSTICE MOYLANLORD JUSTICE NUGEELADY JUSTICE FALK
Re: - A (A Child)
Hearing Hearing date: 31 January 2025
Nick Goodwin KC (instructed by City Solicitor) for the Appellant
Frances Heaton KC and Clodagh Maguire (instructed by Stephensons Solicitors) for the 1 st Respondent
Michael Jones KC and Leonie Caplan (instructed by KHFS Solicitors) for the 2nd Respondent
Jonathan Sampson KC and Rachael Banks (instructed by MSB Solicitors) for the 3rd Respondent
Brendan Roche KC and Samantha Birtles (instructed by Alfred Newton Solicitors) for the 4th Respondent
Approved JudgmentThis judgment was handed down remotely at 10.30am on 10 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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[1]These proceedings concern a young child, who I will call P, who is now aged two. Since she was born she has lived with her maternal grandmother (“MGM”), initially with the mother pursuant to a written agreement between the mother and the Local Authority and, following the commencement of proceedings on 28 September 2023, with the MGM alone pursuant to an interim care order.[2]The Local Authority, Salford City Council, appeals from the orders made by Recorder Howard (“the judge”) on 18 October and 14 November 2024. The final hearing took place between 14 and 18 October 2024. In her judgment, given on 18 October, the judge set out that she had to decide whether P should “be brought up within her family by the MGM or be placed for adoption” and that the “realistic options” were “a final care plan of placement for adoption or for P to remain with the MGM. If the latter, whether by way of a care order, a private family law order or an SGO, each option to be accompanied with a suitable package of support”.[3]By her 18 October order, the judge dismissed the application for a placement order, for the reasons explained in her judgment as set out below. She adjourned the case to 14 November to enable the Local Authority to reconsider its care plan in the light of her judgment. In particular, as set out in the order, she requested a review of the Local Authority’s decision not to approve the MGM as a foster carer or as a special guardian.[4]On 14 November, the Local Authority had not changed its position and sought permission to appeal the dismissal of the application for a placement order. The judge refused permission and decided not to make a final order determining the care proceedings, as further explained below, with the result that the interim care order under which P lived with the MGM remained in force. She further adjourned the proceedings (to 16 January 2025) with a direction that the Local Authority file the minutes of the Agency Decision Maker’s meeting on 12 November 2024 and that the Local Authority file a supervision order support plan.[5]Accordingly, the form of the order or orders under which P would live with her MGM have not yet been determined. The Local Authority’s case before the judge on 14 November 2024 was that the only option “left for the court” was a child arrangements order with a supervision order. The judge accepted that this was an option but considered that she needed a supervision order support plan before she could properly make a supervision order. Further, she wanted the Local Authority to provide more details of its decision not to approve the MGM as a foster carer or to change its care plan following receipt of her judgment. In addition, as was emphasised during the course of the appeal hearing, there was also the option of a special guardianship order.[6]There are three Grounds of Appeal:(1) the judge was wrong to dismiss the placement order application at the October 2024 hearing and should instead have conducted a comparative evaluation of all the placement options at the same time;(2) the judge was wrong to adjourn the proceedings on 14 November 2024 and should have made a final order; and(3) the judge failed properly to evaluate the risk to P if she remained in the MGM’s care throughout her childhood.[7]In summary, the Local Authority contends that the judge’s decision to dismiss the application for a placement order was premature and flawed. The judge’s approach had been “linear” and she needed to keep open the option of a placement order “before reaching final conclusions about the merits of P remaining with” the MGM. In particular, the judge was not in a position to undertake the required comparative evaluation of the realistic placement options without further evidence of what support plan or package would be available if P was living with the MGM. This was also required to enable the judge to carry out a proper evaluation of the risk of harm to P if she remained in the MGM’s care throughout her childhood.[8]The Local Authority’s position might appear to be somewhat inconsistent in that it is being argued both that the judge should have made a final order on 14 November but that she was wrong to determine the placement order application on 28 October. The latter is based on the submission that more evidence was required yet it is not submitted that that evidence was available on 14 November. Further, it is also submitted that the judge had “ample material on which to make [her] decision”. It appears to me, however, that the core issue which underlies the Local Authority’s case is whether the judge’s welfare analysis was flawed or wrong in particular because of the absence of information about the support plan which would be available if P lived with the MGM and what changes the MGM was likely to make in order, as submitted by the Local Authority, to “secure the child’s safety with the MGM”.[9]On this appeal the Local Authority is represented by Mr Goodwin KC and Ms Shafi; the MGM is represented by Mr Sampson KC and Ms Banks; the mother is represented by Ms Heaton KC and Ms Maguire; the father by Mr Jones KC and Ms Caplan; and the Guardian by Mr Roche KC and Ms Birtles. Only Ms Shafi and Ms Maguire appeared at the hearing below.

Background

[10]P, as referred to above, is now aged two and has been living with the MGM since she was born. Her “mother is white British and her father is Nigerian”. The judge found that P is “thriving” in the MGM’s care. She is “meeting all her developmental milestones, is playful, engaging and happy”. The judge also recorded that all the professionals who had seen the MGM and P “together, say they have a very strong and loving bond”. The MGM has also supervised the regular contact between P and the mother (four times per week) and, separately, the father (once per week).[11]The background, as summarised in the judgment below, is as follows:
“1. [The mother] was the victim of repeated sexual abuse as a child by [the MGM’s] partner, … This abuse has had a profound impact on her and her ability to stay safe. As a teenager and adult she has been in abusive and risky relationships and has struggled with her mental health and alcohol addiction. [The mother’s two children born in 2013 and 2014 were placed for adoption]. [The MGM] offered to care for both boys but she was not considered viable. 12. [The mother and the father] have been in an ‘on-off’ relationship for many years. … A social worker conducted a pre-birth assessment in November 2022 and was worried about reports of physical violence and arguments between [them]. 13. P was born on … and a further assessment was carried out. The social worker had received reports from the Police of domestic abuse and alcohol abuse by [the mother] and [the father] and a safety plan was agreed. [The mother] and P to stay at [the MGM’s home] and neither parent to drink alcohol whilst caring for P. 14. [The mother] did not stick to the plan. She stayed away from [the MGM’s] house with P between 4th and 7th September 2023 without telling anyone where they had gone. [The mother] had taken P to stay with … a man who had previously been arrested for sexual, violent and grooming offences and was not a safe person for them to be around. [The mother] stayed away again on 11th September and was found, under the influence of alcohol, sitting outside a shop with P for over two hours the following evening. 15. The local authority decided to issue care proceedings and seek immediate removal of P from [the mother] under s. 20 Children Act 1989. With [the mother’s] agreement, P was placed with [the MGM] from 14th September 2023 and [the mother] moved out. Care proceedings were issued on 28th September 2023 and an ICO made on 16th October 2023.”
[12]As noted in the judgment, the support provided to the MGM by the Local Authority has been “visits from [the allocated social worker] every 3-4 weeks and a family support worker visiting from time to time”.

Proceedings

[13]At the final hearing, all the parties agreed, and the judge was satisfied, that the threshold criteria for the making of orders under s. 31(2) of the Children Act 1989 (“the 1989 Act”) were established. This was based on factors relating to the parents and not the MGM. In addition, neither the mother nor the father suggested that P should live with either of them. The judge was, therefore, making a best interests decision and, as described by the judge in straightforward terms, the issue she had to decide was whether P should be brought up by the MGM or should be placed for adoption.[14]The Local Authority, supported by the Guardian, relied on a number of matters in support of their application for care and placement orders with, as expressed by the Guardian, the “main concern [being the MGM’s] ability to safeguard P as she gets older, especially in her teenage years”. The MGM and the parents’ case was that P should live with the MGM.[15]The judge heard evidence from the allocated social worker, the supervising social worker who had undertaken a “connected persons” assessment in December 2023, the mother, the MGM and the Guardian.[16]On 17 October 2024, after the parties had made their respective submissions, the judge “discussed the position with the parties were I to refuse a placement order”. The upshot was that the Local Authority indicated that, before the judge gave judgment, it would provide details of “the package of support” which could be provided if P were to live with the MGM.[17]The Local Authority filed a further statement in response to the judge’s request. This first reiterated the Local Authority’s view that there was “no package of support that could be put in place to manage the risks”. It then provided some details of a “support package” if P was to be placed in the care of the MGM. This included some limited exploration of “external services to ascertain what support that could be offered to” the MGM and one potential provider had been identified. However, it was stated that there would need to be further consideration “in terms of funding this which would include consideration of the benefit to P and the delay that this would cause in terms of planning for her permanence”.[18]On the next day, 18 October 2024, the judge indicated that the Local Authority had not provided a “proposed support plan” as she had requested although she noted that there were “some proposals as to what the support plan would look like”. The solicitor for the Local Authority responded that it had been difficult for the Local Authority given “its assessment of the risk”.[19]The Local Authority’s position at that stage was that a care order under which P lived with the MGM was not an option. It was submitted that it was open to the judge to give judgment and “ask the Local Authority to reconsider its care plan in line with the guidance in Re T and Re W” (In re T (A Child) (Care Proceedings: Court's Function) [2018] 4 WLR 121 and In re W (A Child) (Care Proceedings: Court's Function) [2014] 1 WLR 1611). Further, once the judge had given judgment with her evaluation of the risk, the Local Authority would “take that away and come up with a support package”.[20]The judge agreed to take this course, namely to give judgment and then adjourn to enable the Local Authority to reconsider its position, but also made clear that if a care order under which P lived with the MGM was not possible it would be open to her to make a child arrangements order and a supervision order. The judge indicated that her “evaluation of risk” differed from that of the professionals in the case and also made clear that she did not intend to extend the proceedings “in order for further work to be carried out”. She would give judgment on what she considered to be the substantive issue, namely whether the right welfare outcome for P was to make care and placement orders or was to make orders under which she lived with the MGM.[21]The judge’s written judgment was then provided to the parties’ legal representatives. It was not immediately given to the parents and the MGM because their lawyers considered “it was more appropriate for [the judge] to announce the decision” before this was done. The judge explained to the parties that she had decided that P “was not going to be placed for adoption” but “she will live with the” MGM (emphasis added), with the parents continuing to have family time with P. At the next hearing, she would “decide what rules you are all going to have to follow in order, in your case, [the MGM], to care for P, and for [the parents] for how you spend time with P” (emphasis added). I have emphasised the wording used by the judge because they make clear what the judge had determined.[22]The case was then adjourned to 14 November 2024. One order provided for the dismissal of the application for a placement order and another order contained a request that the Local Authority review its decision not to approve the MGM as a kinship carer or special guardian “taking into account the court’s welfare evaluation and assessment of risk”. The Local Authority was to file evidence from the Head of Children’s Services and, if it agreed to amend its final care plan, to provide a revised final care plan.[23]The case was reconsidered by the fostering panel which adhered to its previous decision that the MGM could not be approved as a foster carer on the basis that “there was no new information within the written judgment that would alter panel’s previous recommendation”. In respect of the plan for adoption, the matter was also reconsidered by the Agency Decision Maker and, likewise, her decision remained the same. As a result, the Local Authority did not provide an amended care plan nor did it provide details of any proposed support plan.[24]When the matter returned to court on 14 November, the Local Authority applied for permission to appeal out of time from the judge’s decision to dismiss the application for a placement order. It was also submitted that the only option open to the court was to make a child arrangements order and a supervision order. The parents and the MGM opposed the application for permission to appeal and also invited the judge to make a child arrangements order and a supervision order although it was pointed out that there was no support plan.[25]The judge refused the application for permission to appeal but adjourned the case. She gave a short judgment in which she explained that the Local Authority had not provided any support plan and that until one had been filed which “can be properly scrutinised”, it was not appropriate to make final orders. The judge gave further directions including that the Local Authority file a “supervision order support plan”. The matter was to be listed in January 2025.[26]By order dated 20 December 2024, the Local Authority was given permission to appeal out of time and the care proceedings were stayed.

Judgment

[27]At the outset of her judgment,

the judge identified the issue she had to determine as being:

“I must decide who should look after P. Should she be brought up within her family by her Grandmother … or be placed for adoption”
. She also identified the “realistic options” as being: “a final care plan of placement for adoption or for P to remain with [the MGM]. If the latter, whether by way of a care order, a private family law order or an SGO, each option to be accompanied with a suitable package of support”.[28]When dealing with the history, after setting out the background as quoted above,

the judge additionally said:

“22. [The MGM] has two daughters; C and [the mother]. [C] was also sexually abused by [the MGM’s] partner [H] and it was [C] who, then aged 17, revealed what had happened. [The MGM] believed [C] and ended her relationship with [H] immediately, however, she subsequently allowed [H] to visit [the mother] in her home. Her explanation for this was that [the mother] viewed [H] as a father figure and allowing the visits was better than [the mother] going to [H’s] home unsupervised. 23. All the [professionals] concerned with this case view [the MGM’s] decision as a huge safeguarding failure. [The MGM] accepts that and says that if she had her time again, she would not have allowed [H] any further contact with [the mother].”
[29]The judgment contained a summary of the evidence from the allocated social worker, the supervising social worker and the Guardian in respect of the MGM. They raised a range of matters in support of the Local Authority’s application for a placement order which included, based on what had happened to the mother and her sister as referred to above, the risk that the MGM would not be able to protect P from “emotional harm, sexual harm through exposure to risky adults and child sexual exploitation”. The judge addressed each of these matters, as summarised below.[30]The judge noted that P had lived with the MGM throughout her life, as her sole carer since September 2023. She found that P “is thriving” in the MGM’s care. She “is meeting all her developmental milestones, is playful, engaging and happy”. P had “her own bedroom, carefully decorated by [the MGM], [and] is always beautifully dressed”. All the professionals who had seen the MGM and P “together, say they have a very strong and loving bond”. While they had also described the MGM’s care of P as “good enough”, the judge considered that this “underplays how well [the MGM] cares for P”.[31]The judge also found that the mother was “a positive and loving presence in P’s life” and accepted that the MGM would be able to manage the risks arising from the mother “engaging with risky individuals and/or drinking around P by continuing to impose the firm boundaries that are already in place”.[32]The MGM had been cognitively assessed by a psychologist in November 2023. In very brief summary, he concluded that the MGM’s intellectual functioning was “within the Borderline range of ability … indicative of mild cognitive impairment but no overall intellectual disabilities”. While the MGM had “average cognitive strengths” in some areas, she “exhibited an extremely low performance on the Processing Speed Index”. He recommended that, to “facilitate effective communication and support for [the MGM], professionals need to be cognisant of her processing speed difficulties” and needed “to employ adaptive communication strategies” including, for example, giving her “extra time … to process information and formulate responses”.[33]The judge referred to this assessment when considering the evidence from the social workers and the Guardian as to the MGM’s ability to learn and protect P in the future. Each of them did not consider that the MGM had the capacity to protect P from the risk of harm in “the long term”, the risk being, as referred to above, of “emotional harm, sexual harm through exposure to risky adults and child sexual exploitation”. They had concluded that the MGM was “unable to reflect on past experiences, accept responsibility and identify what went wrong and why, learn from that process and apply that learning to enable her to anticipate future risk to P as she grows up and to effectively safeguard her from those risks”.[34]The judge was critical of this evidence. She accepted that the social workers and the Guardian had “spent time to varying degrees with [the MGM] discussing past events and encouraging her to reflect and learn” but this had been undertaken “within the framework and parameters of assessment in December 2023 (10 months previous to this judgment) and contact with [the MGM] has been limited since then”. It had also not taken into account the conclusions of the psychological assessment referred to above. The judge noted that all “subsequent contact has been at [the MGM’s] home and focused on the immediate concerns of how [the MGM] was coping”. She considered that it was “not surprising in my view that little progress was made in getting [the MGM] to reflect, acknowledge responsibility for past events and learn from them” because this had not been “an appropriate environment to engage meaningfully with [the MGM] on such sensitive and profound issues, particularly given [the MGM’s] cognitive difficulties … These are matters that should be approached with great care, preparation and within an appropriate setting”.[35]The judge was also critical of the fact that the MGM had not been referred to any “form of specialist support on recognising and preventing child sexual abuse and safeguarding” and that no “specialist therapeutic work has been undertaken with [the MGM] to assist her in reflecting on her parenting and past events and learning from them”. The Local Authority had not pursued these because, as stated by the supervising social worker, “in her view there was no support or training” which would enable the MGM to meet fostering national minimum standards; and, as stated by both social workers, they considered that “such work would have overloaded [the MGM], given her cognitive and processing difficulties, during a time when she was being assessed and was sole carer for P”. As the judge no doubt considered, meeting fostering standards was only one aspect of the case and this approach did not take the broader picture into account. Further, when “pressed on what level of support [the MGM] would require were P to remain in her care, [the allocated social worker] stated that it would require someone going in daily for the remainder of P’s childhood to check that [the MGM] was asking the right questions to ensure that P was effectively safeguarded”. On any view, this was a surprising suggestion given that the social worker was only visiting the MGM every 3/4 weeks and “all professionals agree that, with that level of input, [the MGM] is currently able to meet P’s needs”. The judge concluded that there was no “thorough, reliable, evidence basis for this assertion; it was drawn from [the social worker’s] observations and interactions with [the MGM] as described above rather than any specialist assessment of her needs”.[36]As referred to above, the Local Authority relied on a range of issues (or “concerns”) in support of their case for a placement order. The judge addressed each of them in turn although her overall assessment was that, while the Local Authority raised “several other concerns about [the MGM’s] ability” to care for P”, the “key issue” was an “assessment of future risk to P” if she lived with the MGM.[37]The first “concern” centred on the MGM’s health with the Local Authority saying that there were aspects of the MGM’s physical health which impacted on her ability to care for P. The judge did not accept this. She accepted the MGM’s evidence that “her conditions are stable and do not impact on her ability to care for P” and, indeed, that being “more physically active since P arrived has been good for her health”. The judge also noted that there had been “no difficulties in [the MGM’s] physical abilities to care for P reported or observed by professionals”.[38]The next matter was that the MGM was “not … proficient with technology and social media”. This was the foundation for the asserted existence of “a safeguarding risk for the future, in particular online grooming”. The judge did not accept this. She observed that the MGM was “certainly not alone in struggling to access and navigate social media” and that, in any event, she was able to “access social media and technology”.[39]Another concern was the MGM’s “lack of a support network”. The judge recognised that the MGM had a “limited support structure” but considered that the MGM’s family would assist “where necessary”.[40]Next, the Local Authority and the Guardian were “concerned that [the MGM] sometimes fails or delays in reporting important matters”. This included the MGM not reporting to the Police that the mother was missing with P in September 2023 and other instances when she had “not been proactive in informing social services of incidents” such as when the mother had been assaulted in the street. The MGM had “not appreciated that she should report these matters immediately” and would “not allow any such behaviours in her home or around P”. The judge found that there was “a risk that [the MGM] dismisses or minimises such incidents, not appreciating their potential impact upon P’s welfare. However, she responded positively to [the social worker’s] advice and direction that she must always do so in the future”.[41]On the issue of safeguarding in the future, the Local Authority and the Guardian considered that the MGM lacked insight because “she did not accept that there were problems with her parenting other than allowing [H] into their home and allowing him to visit after [C] had disclosed sexual abuse”. This was “profoundly concerning and risks [the MGM] making similar mistakes with P”.[42]The judge disagreed. She found that the MGM “demonstrated insight” and had “accepted responsibility for the sexual abuse perpetrated by [H] on her daughters and accepted that she had made mistakes parenting [the mother]; she had not picked up on signs that she was being exploited and abused and had not protected her”. The judge addressed a specific incident highlighted by the social worker “as an indicator that [the MGM] will be unable to protect P from emotional harm”. The judge considered that the incident was “more nuanced” and did not support the social worker’s conclusion. Rather, it “demonstrated that [the MGM] was actively considering [the mother’s] emotional well-being and balancing competing considerations”.[43]Another issue raised by the Local Authority was that the MGM “is reactive rather than proactive, requiring instructions which she will then follow”; examples were given of the social worker “having to point out hazards to a small baby in the home and garden”. The judge noted that, in the course of her oral evidence, the social worker agreed that the MGM had “rectified those issues once raised with her and that she has no current concerns about the home environment”. The judge also commented that, since January 2024, the MGM had “been able to care for P and manage supervised contact [with the parents] with very limited involvement from social services”; that she “had been employed full-time for the previous 5 years, only giving up that job to care full-time for P; that she has savings, no debts and no rent arrears; she manages her domestic and financial affairs competently”.[44]The judge additionally referred to viability assessments of the MGM which had been undertaken in 2013 and 2015 and which were relied on by the Local Authority. While they added “some weight to the concerns raised by the professionals”, the assessments “were not tested in evidence” and there was “no contextual information”.[45]The judge set out the relevant legal principles, which were agreed between the parties. Also, as required when considering whether to make a placement order, she addressed the factors set out in the welfare checklist in s. 1(4) of the Adoption and Children Act 2002 (“ACA 2002”).[46]The first two are P’s wishes and feelings (s. 1(4)(a)) and her needs (s. 1(4)(b)). The judge determined that P has a “strong loving bond” with the MGM and her parents and that she “is thriving in her family environment”. P would “not want to lose these significant relationships”. The judge repeated that the MGM “is meeting P’s physical, emotional, and educational needs through the care that she is currently providing and as I have described in my findings above”.[47]In respect of s. 1(4)(c) and s. 1(4)(d), “the likely effect on the child (throughout [her] life) of having ceased to be a member of the original family and become an adopted person” and P’s “age, sex, background and … characteristics”, the judge referred to the Family Finding Statement. This set out that P “is likely [to have to] ‘wait longer’ for an adoptive placement” and detailed “the extensive efforts … to identify a culturally suitable family for P, with no success”; “currently on a national search … only 2 profiles are even eligible for consideration”. As a result, the judge noted that, “if a placement order were to be made, it is unlikely that [a suitable family] could be identified … in the near future or at all”.[48]The judge also considered that removing P from her MGM and family “in which she is happily settled … may have a profound impact on her sense of identity”. P is “deeply attached to the MGM” and will “have developed tangible memories of her family”.[49]On the issue of harm (s. 1(4)(e)), the judge set out that there was “a risk that, as P grows older, [the MGM] will not be able to effectively safeguard her from sexual abuse, exploitation and emotional harm” (emphasis added). This was because she “had failed to do so in respect of her two daughters and she may parent P in a similar manner”. “If [the MGM] is to effectively safeguard P she will need ongoing support and work. She will need to develop understanding and skills and she will need to be open with [professionals] and tell them about events outside of the home even if she does not consider them significant”.[50]There was also a “risk posed to P’s welfare by her mother’s behaviour. It is possible that [the mother] will continue to engage in risky behaviour and/or rely on alcohol”. Even if the MGM “continues to maintain agreed boundaries”, P would be “emotionally impacted” by the mother’s behaviour.[51]On relationships with relatives (s. 1(4)(f)), the judge referred (as set out above) to the quality of P’s relationship with the MGM and the mother and to the Local Authority’s proposal for twice yearly contact with the MGM and letter contact with the mother. She also set out that:
“the MGM is willing to provide P with a secure environment in which she can develop, and P’s current physical and emotional needs are met by the MGM. P’s emotional needs are further supported by her family time with her parents.”
The judge repeated that there is a risk that the MGM would not be “able to provide P with a safe and secure environment throughout P’s childhood”.

The judge’s ultimate analysis starts with the following paragraph:

“Removing a child has a profound lifelong impact on the child and its natural parents and is a step only to be taken after a comprehensive, full welfare analysis has been undertaken of the pros and cons of the possible realistic options for the care and welfare of the child. Only where the Judge finds that there are no other realistic options available for the future care of the child can the parents’ consent be dispensed with and a placement order be considered.”
[53]The judge considered that the welfare considerations were “finely balanced”. As for the “other concerns” raised by the Local Authority the judge concluded that “separately or cumulatively … [they] present no real limitations on [the MGM’s] ability to effectively and lovingly care for P during the whole of her childhood. P’s needs are well met by [the MGM] and she is thriving and happy”. The central issue was “the assessment of future risk to P” and whether the MGM “has the capacity to safeguard P throughout her childhood … from the risks of sexual abuse, grooming and exploitation and emotional harm as she develops and becomes more independent”.[54]I pause there to reflect on the nature of the substantive risk being relied on by the Local Authority and being considered by the judge. The risk is not a risk to P from the MGM or, indeed, from the mother or the father or any other member of the family or any other identified person. The relevant risk is whether the MGM would not be able to protect P from the risk of being harmed by an unidentified other person at some point in the longer term future because, as it was expressed at the hearing before the judge, of “the risk that [the MGM] will not be able to identify the risk". For obvious reasons, there was no evidence that any such threat of harm by another person would arise so assessing the nature and extent of the risk of harm to P is not straightforward.[55]As referred to above, the judge accepted that there was a risk of P being harmed in this way. This led her to undertake a careful analysis of the evidence from the Local Authority and the Guardian to the effect that the MGM did not have the ability to learn and adapt her parenting to safeguard P in the future from such a risk. She gave “considerable weight” to that evidence but set out her reasons for disagreeing with it.[56]The result was that the judge rejected the “assessments of future risk” relied on by the Local Authority. She concluded that they were unreliable because they were not founded on “a proper evidence base” and because there had been no “specialist therapeutic work, support or training” undertaken with the MGM. These deficiencies meant that the Local Authority could not “predict with any accuracy how responsive [the MGM] can or will be and her capacity to safeguard P in the future”.[57]The judge referred to other elements when rejecting the Local Authority’s case that the MGM would not be able to safeguard P from the risk of harm arising in the future. She recorded that the MGM had “explicitly acknowledged that her parenting of her daughters caused them to be exposed to profound harm and she is committed to doing whatever is required to learn and develop skills to recognise risk and protect P from harm”. The judge also considered that while the MGM’s “cognitive difficulties may add to the challenge … , with the right support in place, [they] should not be an absolute barrier to that process”.[58]In the concluding paragraphs of the judgment,

the judge said:

“93. P is loved, well looked after, happy, settled and attached to her grandmother and birth family. Her cultural identity is supported through her relationship with her father. A suitable placement for P has not been identified and P’s bond with and attachment to her family will continue to strengthen in the meanwhile. Removing P and breaking those bonds in these circumstances is likely to be profoundly harmful to her. 94. There are sources of therapeutic training and support that could be provided to [the MGM], adapted to meet her cognitive difficulties as appropriate to enable her to develop insight and improve her ability to safeguard P in future years. This possibility was discounted by the professionals at an early stage in these proceedings for the reasons they provided in their evidence. The local authority have now made enquiries and have identified and laid out such possible provision. 95. Weighing up all these factors, whilst I accept that there is a risk that [the MGM] might not be able to effective[ly] safeguard P in future years, the local authority have not taken all appropriate steps to evaluate that risk and mitigate it through the avenues described above. 96 The local authority has not satisfied me that there is no realistic alternative to the draconian step of dispensing with parental consent and ordering placement; interfering with P’s Article 8 right to a private and family life. I am not satisfied that ‘nothing else will do’ to provide a secure and safe childhood for P and that making a placement order is in her best welfare interests throughout her life. Such an order is not proportionate and necessary and is refused.”

Submissions

[59]I have taken all the parties’ respective submissions into account but I propose to summarise them as set out below.[60]The Local Authority’s case, as set out in its Skeleton Argument, was that, “At the heart of this appeal is the [judge’s] refusal to approve an adoptive care plan and make a placement order in respect of P”. This “refusal” was wrong because it was based on an “evaluation of risk [which] was flawed”. P “would be at risk in MGM’s long-term care because of her failure to protect her own children from sexual abuse and because of her breaches of the safety plan put in place to protect P after her birth” and the judge had failed to analyse the case and answer all the questions which needed to be addressed as set out in Re F (A Child) (Placement[61]The “core submission” advanced in support of the appeal was that the judge “was fundamentally wrong in principle to rule out adoption before reaching final conclusions about the merits of P remaining with MGM”. The judge had conducted “an entirely linear approach” rather than “a comparative evaluation of all placement options at the same time”. The Local Authority’s case had been that two realistic options were available to the judge, namely care and placement orders or a child arrangements order coupled with a supervision order under which P lived with the MGM. The judge had sought to introduce a third option, namely P remaining with the MGM under a care order. If the judge “wanted to explore further the possibility of an amended care plan with P remaining with MGM under a care order, she should have adjourned the placement order application to allow all three options to be evaluated simultaneously”. Accordingly, in ruling out the option of a placement order, the judge deprived herself of being able to conduct a proper welfare/proportionality evaluation.[62]Mr Goodwin pointed to comments made by the judge during the course of the hearing such as there being an “absence of information about what a support plan would look like under a care order”. He also relied on the judge’s comments in her judgment, at [62], that “this is a case where the level of future risk is such that it might well be proportionate and in P’s best welfare interests for the Local Authority to retain joint parental responsibility” and, at [77], that if the MGM “is to effectively safeguard P she will need ongoing support and work”.[63]In his oral submissions, Mr Goodwin submitted that the judge did not have “enough evidence” properly to decide between these respective options because she did not have evidence of any “support package” which would provide “the underlying support which would secure the child’s safety with the MGM” (my emphasis). Without that evidence, the judge’s analysis of risk of harm was flawed because, he submitted, placement with the MGM was “dependent” on that support.[64]I would also however note that, when addressing Ground 3 in his written submissions, Mr Goodwin submitted that the judge had “ample material on which to make [her] decision” (my emphasis). The Local Authority and the Guardian had considered “what support might be put in place to mitigate” the risk of harm to P “in future years” if she lived with the MGM and had “concluded that the risks could not be reduced to an acceptable level”. The “fact that the court disagreed with [the Local Authority’s] (and the Guardian’s) conclusions did not justify a further adjournment”.[65]Finally, in his reply, Mr Goodwin accepted that in some cases the court will be able to reject one of the substantive options before determining the specific form of the final order. But, he submitted, this was not such a case because consideration of placement with the MGM was dependent on what support services were available.[66]Mr Sampson submitted that the judge’s welfare analysis was not “linear”. The judge considered the realistic options and determined the fundamental issue, namely whether P should be placed for adoption or should be cared for by the MGM. The Local Authority’s complaint was, essentially, that because the judge had concluded that adoption did not pass the proportionality crosscheck, the judge must have adopted a linear approach. This was wrong because the judge had undertaken a comparative evaluation of placement with the MGM and adoption. It had been open to her to reject the analysis of the Local Authority and the Guardian. He pointed to a number of factors including that P “is happy and settled in MGM’s care”; that P “has made positive progress and is meeting developmental milestones”; that the MGM “has demonstrated her willingness and ability to promote and supervise contact between P and each of her parents”; that no “therapeutic work or other teaching has been attempted with MGM”; and that the identified risk to P was long-term and was one which could be addressed.[67]Mr Sampson submitted that, contrary to the Local Authority’s submissions, the judge had addressed the issue of risk of harm and had factored that into her overall welfare analysis. Risk of harm is a common feature in welfare decisions and it is for the judge to determine its impact in the balancing exercise. In this case, the judge had been entitled to decide that the risk of future harm did not bear the weight which the Local Authority sought to place on it and did not justify an order as significant in its consequences as a placement order. The judge had been entitled, as explained in her judgment, to reject the assessments which had been undertaken of the MGM’s capacity to change and her capacity to safeguard P and to conclude that there was training and support “to enable [the MGM] to develop insight and improve her ability to safeguard P in future years”. Having concluded that removing P from her family and the MGM’s care was “likely to be profoundly harmful to her” and that all appropriate steps had not been taken to evaluate and mitigate the risk of harm if P remained in the MGM’s care, the judge “could not find that there was an overriding requirement pertaining to P’s welfare which necessitated” adoption.[68]Mr Sampson acknowledged that the judge could have asked for more evidence but submitted that she did not need to do so in order to be able properly to determine the application. The judge had been entitled to determine the fundamental issue, namely as between placement with the MGM and adoption. The case had exceeded 50 weeks and no party had suggested that the final hearing should be adjourned. The judge had required the Local Authority to reconsider whether the MGM could be approved as a foster carer but she had not decided that a care order was necessary. She was entitled to decide that adoption was not proportionate or necessary and that, as she said, if a care order was not an available option, she could make a child arrangements order with a supervision order or a Special Guardianship order. The judge was not required to decide at that stage how placement with the MGM should be secured. It was not unusual for a judge “to leave the precise implementation to a later decision” – “the mechanics about how to achieve an outcome”. Indeed, he submitted that the judge would have erred in law if she had adjourned the application for a placement order. He submitted that, in reality, the Local Authority was merely seeking to have “another go” in persuading the court that care and placement orders were the right outcome.[69]In summary, he submitted that the judge had factored the future risk of potential harm into her overall welfare analysis and concluded, as between placement with the MGM and care and placement orders, that the former was the appropriate welfare outcome.[70]Ms Heaton on behalf of the mother supported the case advanced by the MGM. The judge had dismissed the application for a placement order because she had decided that it was neither necessary nor proportionate. The matters relied on by the Local Authority, in particular the future risk of harm, did not warrant the making of a placement order. The judgment contained a “holistic, comparative evaluation” of the realistic options and sufficiently explained and justified why she had reached this conclusion and had decided that placement with the MGM was the placement which was in P’s best interests. Contrary to the Local Authority’s submissions, the judge had reached final conclusions about the merits of P remaining living with the MGM. She had adjourned the proceedings “not to determine the merits of P remaining with the MGM but rather how the placement was to be supported and under what legal framework”. This remaining issue did not require her either to “adjourn the placement order application nor to conclude all matters simultaneously”.[71]Ms Heaton pointed to the positive findings made by the judge about the care being provided by the MGM and the fact that P is settled, happy and thriving. Contact between P and her parents was also “working”, so she was developing safe and secure relationships with them. She submitted that, contrary to the Local Authority’s case, there was no need for the judge to keep the option of a placement order “on the table” when she had decided that such an order was not a necessary and proportionate response to a prospective risk which might eventuate in, Ms Heaton suggested, 12 plus years. As set out in the judgment, the Local Authority had failed properly to address with the MGM how she might protect P in the future. This meant that, for example, the Agency Decision Maker’s conclusion, in “one of the most difficult cases that she has considered”, that the MGM “remains unable to engage or acknowledge this reflection process (to reflect on the past and consider what actions she could have taken to protect her daughters)” was not sustainable which, in turn, undermined the conclusion that “This inability raises concerns about her capacity to meet the needs of P in the long term”. In summary, she submitted that the evidence did not justify the conclusion that this risk would eventuate or, at least, the evidence did not establish that there was a sufficient risk of it occurring as to justify placing P for adoption.[72]Mr Jones on behalf of the father also supported the MGM’s position. He similarly submitted that the judge undertook the required balancing exercise or evaluation by which the court determines “the best placement option available for the subject child from a welfare perspective”. The judge had determined that placement with the MGM and not adoption was the option which best met P’s welfare needs.[73]The real question, he submitted, was whether the judge’s welfare analysis was sufficient. He submitted that it was in that it considered “the pros and cons” of each option. The judge had identified the “numerous strengths and positives associated with the continuing placement of P” in the MGM’s care. She had also engaged with the various negative and risk factors, in particular the risk of future harm, as relied on by the Local Authority and had “properly articulated the basis for departing from the professional assessments of future risk”. The judge had been entitled to conclude that adoption was not justified.[74]The Guardian supported the appeal. Her primary case, as set out in her Skeleton Argument, was that the judge had been wrong to dismiss the application for a placement order “in isolation” and that the judge’s analysis of risk “was flawed and inadequate”. At the hearing, Mr Roche submitted that the judge had not been in a position to determine the application for a placement order until she knew what support would be available for the MGM and what changes the MGM was likely to make. Like Mr Goodwin, he relied on comments the judge had made during the course of the hearing such as, that the further information provided by the Local Authority at the conclusion of the hearing had not been “a proposed support plan” as she had requested; and the judge’s observation that “nothing is going to change … until the therapeutic work that we have been discussing is put into place. And … I can see the [inaudible] evaluation”. I would note, however, that this last comment was in the context of whether the fostering panel might change its decision before such work had been undertaken. It was not being suggested by the judge that she required this evidence before she made her decision. Indeed, as Mr Jones pointed out, this would have required an adjournment of upwards of 5 months.[75]In summary, therefore, Mr Roche submitted that the judge was not in a position properly to evaluate the competing options until she had evidence about what support or therapy was available and whether that support or therapy would be effective. This “missing evidence” was required before the judge was able to make a proper welfare determination between the different options.

Legal Framework

[76]I deal with this briefly because it is a well-travelled area of the law.[77]We were referred to Piglowska v Piglowski [1999] 1 WLR 1360; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; and Re YW (A Child) (Adequacy of Reasons) [2021] EWCA Civ 1174 as to the approach which appellate courts should take when reviewing first instance judgments. In the last of these Baker LJ said, at [55]:
“Thirdly, I acknowledge of course that the assessment of evidence, and the apportionment of weight to be attached to each piece of evidence, are matters for the judge at first instance and that an appeal court must not interfere with findings of fact by trial judges unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. I bear in mind the warning given by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at paragraph 115 that the expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed, that in making her decisions the trial judge will have regard to the whole of the sea of evidence presented to her, whereas an appellate court will only be island hopping, and that the atmosphere of the courtroom cannot be recreated by reference to documents.”
In In re H-W (Children) [2022] 1 WLR 3243 (“Re H-W”), in her judgment (with which the rest of the court agreed), Dame Siobhan Keegan reiterated, at [49], that in “a case where the judge has adopted the correct approach to the issue of necessity and proportionality, the appellate court’s function is … to review his findings and to intervene only if it takes the view that he is wrong” or, at [51], if it concludes that he has not undertaken the required balancing exercise because, for example, he “has unduly telescoped the process, and has not made the side-by-side analysis of the pros and cons of each alternative to a care order”.[78]This last observation reflects the fact that the court’s evaluation of the relevant placement options should not be linear in the sense that each option is considered individually without comparison with other options: e.g. In re B-S (Children) (Adoption[79]In addition, the parties referred to the well-known passages in Lady Hale’s judgment in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 (“In re B”), as reflected in paragraph 96 of the judgment below:
“198 Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions; and 215 … We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”
. In other words, the test is one of necessity. Nothing else will do.” I would note in passing that, as explained by McFarlane LJ in In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889 (“Re W”), at [68], the expression “nothing else will do” is not a “free-standing, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare”; it is “a useful distillation of the proportionality and necessity test as embodied in the European Convention and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002, s 1)”. As he further explained, at [73], “what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child's welfare needs and it is proportionate to those welfare needs.”[80]The final two authorities which I propose to mention are Re F and Re H-W. This is, first, to note that both reiterated the need for the court’s analysis to be sufficient to demonstrate the basis on which the court had reached its decision and that the court had adequately addressed the relevant factors.[81]Secondly, in Re H-W, at [47], Dame Siobhan Keegan repeated that the court’s balancing evaluation needed to take “into account all the negatives and the positives, all the pros and cons, of each option”; this was “the accepted standard for the manner in which a contemplated child protection order must be tested against the requirement that it be necessary and proportionate”. In that case, at [62], “the process adopted by the judge [was] flawed”. The judge had not explained “why the emotional damage that [the children] would suffer under a care plan which separated them from their mother [their stepfather and their siblings] was proportionate to and necessitated by the identified risk of sexual harm from A [one of the mother’s other, adult, children]”.[82]Finally, it is relevant to refer to the Supervision Order Report published in April 2023 by the President of the Family Division’s Public Law Working Group. This contained “Recommendations to achieve best practice in the child protection and family justice systems: Supervision orders”. One of the key recommendations was to ensure the provision of supervision order support plans. Accordingly, at [151(iv)], it was provided that “The supervision support plan must be approved by the court before a supervision order is made” (my emphasis). This was to remedy the previous lack of such plans in contrast to the position when care orders or special guardianship orders were being made when plans were being provided. Further, the Best Practice Guidance contained the following:
“Where the local authority’s proposed final plan was not for a supervision order but the court has, following either an Issues Resolution Hearing (IRH) or in the course of the final hearing (FH) indicated that it may wish to make a supervision order The hearing should be adjourned to allow a draft supervision order plan to be developed in line with the core best practice principles in this guidance together with any updating social work evidence. The applicable timeframes for adjournment are: • 28 days unless designation of another local authority is likely to be required …”

Determination

[83]I first propose to deal with the Local Authority’s “core submission” advanced in support of the appeal that the judge adopted “an entirely linear approach” rather than “a comparative evaluation of all placement options at the same time”. The judge was said to have “fundamentally erred in failing to determine the placement order application and the merits of a placement with MGM at the same time” and to have been “fundamentally wrong in principle to rule out adoption before reaching final conclusions about the merits of P remaining with MGM”.[84]I will then consider the challenge to the judge’s welfare assessment and whether it was flawed in particular because the judge needed further evidence of the support which would be provided to the MGM and what changes the MGM would be likely to make through the provision of support such as therapeutic services.[85]I am dealing with them separately to give some structure to this part of my judgment. However, because they are interlinked, as was accepted by Mr Goodwin, there will inevitably be some overlap in my consideration of them.[86]My overarching conclusion is that, contrary to the Local Authority’s submissions, the judge did not adopt a linear approach and did determine the merits of making a placement order and of P remaining living with the MGM “at the same time”. This is the issue the judge identified at the start of her judgment and this is the issue she decided. If there was any doubt about this, when the judge explained the effect of her judgment to the parents and the MGM she said that she had decided that P “is not going to be placed for adoption” but “will live with [the MGM]”. Accordingly, the judge had reached “final conclusions about the merits of P remaining with MGM”. She had not reached a final decision about the nature of the order or orders under which this would take place but, as Mr Sampson submitted, this was a matter of form not substance. The judge was plainly satisfied that there was at least one form of order (such as a child arrangements order and a supervision order) available to her which would be consistent with P’s welfare needs and, crucially, such that a placement order was neither necessary nor proportionate.[87]The comparative evaluation which is required is one in which a judge balances the realistic placement options against each other. In this case, in my view, the judge correctly identified those options as being placement for adoption or placement with the MGM “whether by way of a care order, a private family law order or an SGO”. In order to determine the overarching issue of whether P should be placed for adoption or should remain living with the MGM, the judge did not need to decide the precise form of the latter order. All the judge had to decide was that there was at least one option which meant that, to adapt what was said in Re W at [73] as quoted above, that adoption was not the outcome which was necessary to meet P’s welfare needs and which was proportionate to those welfare needs. This is what the judge decided as referred to above.[88]It is also relevant to the submission that the judge’s decision to “rule out adoption” was premature to note that she gave her judgment at the conclusion of what the order states to have been an “effective” final hearing. This was not a case in which a potential outcome was ruled out at an interim hearing. The judge clearly considered that she was in a position properly to determine the key issue she identified at the outset of her judgment, namely whether P should be placed for adoption or whether she should continue to live with the MGM.[89]In reaching her decision, the judge considered all the matters relied on by the Local Authority in support of its application for a placement order. She rejected a considerable number of those matters in her judgment as set out above. She also considered the relevant factors set out in the welfare checklist in the ACA 2002.[90]She accepted that there was “a risk that as P grows older, [the MGM] will not be able to effectively safeguard her from sexual abuse, exploitation and emotional harm” (emphasis added). This was because she had “failed to do so in respect of [her children] and she may parent P in a similar manner” (emphasis added). I have emphasised “a” and “may” because, in my view, the judge rightly recognised that the potential risk was a possibility not a certainty. In coming to these conclusions, she rejected the Local Authority’s case that the MGM was not capable of developing her understanding and skills so as to be able to protect P from this potential risk of harm in the future.[91]The judge’s rejection of the social worker’s and the Guardian’s “assessments of future risk” (paragraph 90) meant that a key element of the Local Authority’s case in support of a placement order was rejected. This part of the judge’s analysis is being specifically challenged, which I deal with below. But, subject to that, based on these conclusions the judge was entitled to decide that the risk relied on by the Local Authority, once all the other matters on which they had relied had been rejected by the judge, was not of a degree or nature which justified a placement order. A key element of this, picking up what was said in Re H-W as quoted above, was the judge’s understandable conclusion that removing P from her MGM and her family, where she was “loved, well looked after, happy, settled and attached”, and “breaking those bonds … is likely to be profoundly harmful to her”.[92]In my view, the judge can be seen to have undertaken a comparative evaluation of the placement options. She balanced the “pros and cons” of P remaining in the care of the MGM against the “pros and cons” of P being placed for adoption. The former included, in particular, the judge’s conclusion that P was “thriving and happy” in the care of the MGM and that there were “no real limitations on [the MGM’s] ability to effectively and lovingly care for P during the whole of her childhood”. The only factor in favour of a placement order was, as described by the judge, “whether [the MGM] has the capacity to safeguard P throughout her childhood” from the risks referred to above. As also referred to above, this is not a direct risk from the MGM but the risk that the MGM will not be able to protect P from the risk posed by others. Again, the judge balanced the potential risk of harm to P in the future, if she remained in the care of the MGM, against the “profoundly harmful” step of removing P from that care and placing her for adoption and concluded that it was in P’s best interests to remain in the care of the MGM because the former did not outweigh the latter. The judge decided that the evidence did not establish a risk of harm which justified a placement order.[93]I repeat that this was a final conclusion as to the merits of a placement order as against placement with the MGM. The judge clearly considered that the latter was the proportionate welfare outcome. Just to pick up one point made by Mr Goodwin, the judge did not say that she had decided that it would be necessary for the Local Authority to share parental responsibility, she said it might be. However, she went on to say that if she was persuaded that a care order was not possible she could “fall back on” a child arrangements order and a supervision order.[94]I now turn to consider whether the judge’s welfare determination was flawed. The Local Authority and the Guardian submitted that the judge was not in a position properly to determine the proceedings and the application for a placement order until, as it was expressed by Mr Roche, the judge knew what support would be available for the MGM and what changes the MGM was likely to make.[95]I would first note that it is not uncommon for judges to have to evaluate risk in the context of a parent’s (or other person’s) capacity for change. It is also not uncommon for there to be doubts and uncertainties about the prospects of change occurring including as to what services or resources are available, such as mental health or drug and alcohol services. These uncertainties do not mean that judges are not able to reach conclusions about those prospects on which to base their welfare decisions.[96]Secondly, a difficulty with this submission is that it glosses over the fact that this was a final hearing and that the judge had been invited by the Local Authority to determine its application and to decide what welfare orders to make on the evidence then available. As referred to above, the order states that this was an “effective” final hearing. Further, as submitted by the MGM and the parents, it is a submission which is formulated in response to the judge’s rejection of the application for a placement order. It is only now being said that this evidence was necessary. It was not being suggested by the Local Authority or the Guardian prior to the hearing or, indeed, at the hearing that further evidence was required before the judge could make a final decision. With all due respect, this is not how care proceedings are determined. If one party considers that further evidence is necessary, they must make the appropriate application.[97]Further, as referred to above, one of the submissions made by the Local Authority in this appeal is that the judge had “ample evidence” on which to make her decision. This is advanced in support of the ground of appeal that the judge was wrong to adjourn the case on 14 November because “she should have made her final decision then and there”.[98]Significantly, it was the judge who was seeking further evidence about the support plan before she made a final order. This was not being sought for the purposes of deciding the substantive issue in the case but to decide the precise form of the order or orders. Among other reasons, this was, no doubt, to comply with the Best Practice Guidance in respect of the making of supervision orders as set out in the Report by the President of the Family Division’s Public Law Working Group, as referred to above.[99]This submission is significantly based on some observations made by the judge during the hearing about the absence of a support plan or package and one sentence in the judgment, namely when the judge said: “If [the MGM] is to effectively safeguard P, she will need ongoing support and work”.[100]As to the judge’s observations during the course of the hearing, the judge was right to point to the absence of a support plan in the event that she decided against a placement order. This was in part because, as referred to above, good practice required her to have that information before she made a final order and also because, as a matter of practice, there are often discussions between the Local Authority, the other parties and the court about the detail in a support plan before making a final order so that there remains a vehicle for seeking to procure changes in the content of the plan from, in particular, the Local Authority.[101]As to the comment in the judgment, this seeks to place too much weight on one comment in the course of a long judgment. It also, in my view, again overlooks that the judge’s determination required her to balance relevant factors which included as one, but only one, the risk of the MGM at some point in the future not being able to protect P from the risk of harm posed by the others. At one point in his submissions, Mr Goodwin referred to the need for evidence of the underlying support which would “secure” P’s safety with the MGM. This is too high a target. The decision is not what outcome will secure P’s safety. It is about, I repeat, balancing the relevant factors including the risk of future harm when deciding what orders best meet P’s welfare interests.[102]The judge was entitled, as explained in her judgment, to reject the assessments of future risk based on what the judge concluded was flawed evidence as to the MGM’s capacity to change and her capacity to safeguard P. This was because, as explained in the judgment, there was no sufficient or cogent evidence that the prospect of this risk occurring was not capable of being ameliorated or managed in the future through the MGM learning and applying that learning in her parenting. She was also entitled to conclude there was training and support “to enable [the MGM] to develop insight and improve her ability to safeguard P in future years”. Mr Sampson acknowledged that the judge could have asked for more evidence but submitted that she did not need to in order to be able properly to determine the application. I agree and agree with his submission that it would have been wrong for the judge to adjourn the case for, say, 5 months to ascertain what the effect of any such training might be.[103]In summary, the Local Authority has sought to isolate certain factors in support of the appeal. This does not fairly reflect the judge’s task which was to balance a number of factors when making her welfare determination. As the judge said, she was “weighing up all these factors”. She did not need to be satisfied that the MGM would keep P safe from harm but whether the risk of harm was such that, effectively, it outweighed all the positive factors in support of P remaining with the MGM and, I repeat, the profound harm she would suffer if removed from the MGM. This decision was not dependent on waiting to see what support services would be provided nor on what changes the MGM would make. Apart from the fact that this was the final hearing and the judge had to determine on the evidence available to her which of the realistic placement options met P’s welfare needs, this would unduly elevate one element of the case and reflects the flawed suggestion referred to above about the need to “secure” P’s safety with the MGM.[104]The judge clearly decided that the risk of the MGM not being able to protect P from sexual abuse in the future did not justify her removal from the MGM’s care and the making of a placement order. The judge needed to be persuaded that such an order was necessary and proportionate and she was not. In simple terms, adapting what was said in Re H-W, the judge decided that the profound harm (paragraph 93 of her judgment) which would be caused by removing P from the MGM and her family where she is “thriving and happy” and when there are “no real limitations on [the MGM’s] ability to effectively and lovingly care for P during her whole childhood” was not proportionate to and necessitated by the “identified risk” of harm. This was a decision which was open to the judge and which she has sufficiently explained and justified.[105]As Mr Goodwin accepted during the course of the hearing, if Grounds 1 and 3 did not succeed, Ground 2 fell away. In any event, I do not consider that it adds anything of substance.

Conclusion

[106]In conclusion, therefore, for the reasons set out above, in my view the appeal should be dismissed.[107]I agree.[108]I also agree.

Order

Proportionality) [2019] 1 FLR 779, at [2]. Order: Leave to Oppose) [2014] 1 WLR 563 (“Re B-S”), at [43]-[44], and Re H-W, at [47], both of which referred to what McFarlane LJ (as he then was) had said in In re G (Care Proceedings: Welfare Evaluation) [2014] 1 FLR 670 (“Re G”).