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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> S, Re [2014] EWFC B154 (29 August 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B154.html Cite as: [2014] EWFC B154

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In the FAMILY COURT
Sitting at NEWCASTLE UPON TYNE

		The Law Courts Quayside Newcastle upon Tyne NE1 3LA
		29th August 2014

1. Her Honour Judge Hudson : By an appellant's notice and grounds of appeal dated 25^th July 2014, F seeks to extend the time for appeal and to appeal against the decisions of the Magistrates on 24^th June 2014 to make a final Care Order and on 7^th April 2014 to make a Placement Order in respect of his son, SJJS, born 3^rd March 2013 )then aged twelve months, but now almost eighteen months). I heard argument on 21^st August 2014 from Mrs Kitching (who appeared in the court below), in support of the appeal, and from Ms Choudhury and Mr Finch (neither of whom appeared at the hearings before the Magistrates), seeking to uphold the Magistrates decisions on behalf of the local authority and the Children's Guardian, respectively. I give judgment today, 29^th August 2014, the first opportunity I have had to do so since 21^st August 2014.
2. It will be immediately apparent that, in circumstances I will set out in further detail shortly, this appeal has been heard some five months after the orders were made. It is an unhappy chronology, one of a number of concerning features in this case, from which lessons must be learned. Of particular concern is that S was placed with prospective adopters on 11^th July 2014.

The Delay

3. In accordance with Family Procedure Rules (FPR) 2010, rule 30.4(2)(b), an Appellant's Notice must be filed within 21 days of the date of the decision of the lower court against which the appellant wishes to appeal. On 24^th March 2014, the Magistrates made a final Care Order. Their reasons (at D1 in the appeal bundle) are also dated 24^th March 2014. An unusual feature of this case is that, as I was told during the appeal hearing, the Magistrates read out their reasons, but declined to provide copies to the parties, in the event, for a month.
4. Mrs Kitching was the only advocate instructed on the appeal who appeared before the Magistrates. Ms Choudhury was, however, accompanied at the appeal hearing by Mrs Hussain, the local authority solicitor who conducted the hearing before the Magistrates. Mrs Kitching and Mrs Hussain were both able to provide further information about the hearing before the Magistrates. I was told that the Magistrates said they were unable to provide written reasons on 24^th March 2104 as they had that day become aware that the child's name was recorded incorrectly. During the care proceedings, the majority of the documents (including Orders) record S's name as SJSJ, whereas his birth certificate gives his name as SJJS. If that was the reason for the delay in producing the written reasons, it is curious that both the Order of 24^th March 2014 itself, and the written reasons provided later, both continued to record his name, wrongly, as SJSJ.
5. A further Order dated 24^th March 2014 adjourned the application for a Placement Order to 7^th April 2014. The same lay Bench sat to hear the Placement application on 7^th April 2014. The hearing proceeded by way of oral submissions, the court having before it the application, statement of facts, Annex B report and Children's Guardian's report. I was told that, once again, the Magistrates' reasons were read out but were not provided to the parties. By the time of the hearing before me, all parties said they had still not received the written reasons.
6. In these circumstances, following the hearing on 21^st August 2014, I reviewed S's placement file and found the written reasons within it. There is no indication that they were sent out to the parties. The reasons dated 7^th April 2014 record that it was only on viewing S's birth certificate that day that the court became aware of the error in the court papers relating to S's full name. The Placement Order, and reasons in support of it, accurately record S's name as SJJS. This raises further questions about the circumstances in which the reasons from the hearing on 24^th March 2014 were so significantly delayed in their written form. It was not, it appears, as a result of the name issue. Curiously, his mother's name is inaccurately spelled in the Placement Order and reasons, in contrast with the reasons relating to the Care Order.
7. Twenty one days expired following the making of the Care Order and Placement Order, on 14^th April and 28^th April 2014 respectively. I have been provided with chronologies prepared by F's solicitor and Mrs Kitching, with a view to explaining the delay in issuing the appeal.
8. On 15^th April 2014 F emailed his solicitor indicating his wish to appeal. The following day he emailed his solicitor setting out his reasons. By this time the parties had not received the written reasons of the Magistrates. The solicitor's chronology records that the court was contacted on 16^th April 2014 requesting a copy of the reasons; the reasons were not received until 24^th April 2014.
9. On 24^th April 2014, F's solicitor wrote to the local authority solicitor informing the local authority of his intention to appeal against the Care and Placement Orders and requesting confirmation that S would not be placed for adoption before the conclusion of the appeal. From a later email exchange between the solicitors, it appears that no response was received to that letter. On 25^th April 2014, Mrs Kitching was instructed by email to advise on the merits of appeal. Her chronology records that her advice was returned on 27^th April 2014. The solicitors applied for Legal Aid on 28^th April 2014.
10. Following enquiries from F as to the progress of his Legal Aid application on 6^th and 9^th May 2014, his solicitor contacted the Legal Aid Agency on 9^th May 2014 to be told the application could not be located and a fresh application should be made. A further application was made on 14^th May 2014, but an error on the form necessitated yet a further application. The solicitor contacted F by email on 15^th May 2014 and a letter dated 21^st May 2014, in circumstances in which F had advised them that he had no working telephone. He contacted his solicitor by email on 24^th May 2014 and informed them he was no longer living at his former address and couldn't return to Newcastle for three days. Following an appointment with his solicitor on 29^th May 2014, the solicitor submitted a further legal aid application, marked urgent, on 3^rd June 2014.
11. The application was followed up by F's solicitor on 17^th June 2014, when the urgency was emphasised. The solicitor was advised that the expected waiting time was a further week. Following a telephone call on 25^th June 2014, the solicitor was informed that Legal Aid had been granted that day.
12. On 1^st July 2014, Mrs Kitching was instructed by email to draft the appeal documentation. She was in fact away from chambers on holiday between 1^st and 16^th July 2014. Although F's solicitor made enquiries on 7^th July 2014 about the availability of other counsel to draft the appeal, it proved unsuccessful, as a result of which the instructions were left with Mrs Kitching for her return. Mrs Kitching returned grounds of appeal to her instructing solicitor on 17^th July 2014. Following a request for them to be amended, revised grounds, together with a skeleton argument, were provided by Mrs Kitching on 25^th July 2014.
13. The appeal was lodged on 29^th July 2014 and issued the following day. Upon receipt by the court, the file was referred to HHJ Moir, the Designated Family Judge, for directions to be given. By an Order dated 5^th August 2014, HHJ Moir listed the appeal before me on 20^th August 2014 for determination of the application to extend time and, if granted, for the appeal to follow.
14. In accordance with the usual practice in this court centre, on 5^th August 2014 the local authority was informed by the court of the appeal by email, because of the possible implications in relation to the placement of the child. In response, the local authority solicitor informed the court by email on 6^th August 2014 that S had been placed with prospective adopters on 11^th July 2014. The email records that 'as no appeal was lodged within the time allowed, Children's Services' plan for S to move to his adoptive placement once it was identified and approved'. The match was approved by the agency decision maker on 1^st July 2014. I was told at the appeal hearing that the social worker informed the legal department of the proposed move in advance and was given no indication that it should not proceed.
15. Unfortunately, F was not informed of the move. I was told that the social worker telephoned him and left messages asking him to contact her, but he did not return her call. A letter to F informing him of the proposed placement was not hand delivered because of what the local authority described as 'safety concerns for professionals' and it was considered too sensitive to post. In these circumstances, the letter was still with the local authority at the time of an email exchange between the solicitors on 6^th August 2014. In any event, F was not aware that S was to be placed with the prospective adopters until after the event. The parents had a final contact with S before his placement.
16. On 6^th August 2014, F's solicitor received the appeal documentation from the court and served it by DX on the parties. On the same date, the local authority solicitor emailed F's solicitor to inform her of S's placement. F was duly informed of this by his solicitor on 7^th August 2014.
17. During the afternoon of 19^th August 2014, and therefore the day before the appeal was listed for hearing, the court received an email request from F's solicitor for the case to be taken out of the list on the basis that they had been unable to make contact with him since the appeal was lodged and they were unaware if he would attend the hearing. The letter indicated that, if he did attend, the solicitors considered they would not be in a position to deal with the substantive appeal. The letter requested 'a short adjournment' for an updated statement to be taken from F. I refused to take the case out of the list, mindful of the delays and acutely aware of the need for a resolution of the appeal as soon as possible. In any event, the appeal would ordinarily be dealt with on the material as it was before the Magistrates at the time the orders were made.
18. On 19^th August 2014, I also received an email from the child's solicitor who represented the Children's Guardian before the Magistrates, informing me that appeal papers had not reached him and that the Children's Guardian was unaware of the hearing the following day and was unavailable. He had nonetheless made arrangements for counsel to attend.
19. F did attend the hearing on 20^th August 2014, evidently keen to pursue his appeal. I had an appeal bundle with skeleton arguments from F and the local authority, but in circumstances I have outlined them, no skeleton argument had been filed on behalf of the children and counsel then instructed had no instructions on the appeal. I did not have the bundle of documents from the care proceedings and so could not assess the sufficiency or otherwise of the material which had been before the Magistrates.
20. The Family Proceedings Court had been asked to produce the notes of evidence. Typed notes of part of the evidence have been produced, which appear to relate to one of the three days on which evidence was given. I gave directions that day for the outstanding documentation to be filed: the bundle from the care proceedings; chronologies setting out the events from the time of the final hearing to the appeal from F's solicitor and from Mrs Kitching; any available notes of evidence of the parts not produced by the Magistrates' Legal adviser; the placement reasons; and any skeleton argument which the Children's Guardian wished to submit (whilst indicating that such a document was not required). I listed the appeal for hearing the following day (21^st August 2014), in the knowledge that I would only have time amongst my other court commitments to hear argument and would then have to reserve judgment, thus giving me a further opportunity to review the relevant documentation.
21. M has not been present or represented at any of the hearings before me. A letter from her solicitor has confirmed that he had not received instructions from her since the proceedings before the Magistrates concluded.
22. I have set out this chronology in some detail with a view to explaining this highly unfortunate sequence of events, both in relation to the delay in issuing the appeal and in the placement with prospective adopters meanwhile. F informed his solicitor of his wish to appeal on 15^th April 2014, twenty two days after the Care Order was made and only eight days after the Placement Order was made, but in circumstances in which the Magistrates had, by then, failed to provide written reasons for either decision. The only other period of delay which can be attributed to F is between 15^th and 24^th May 2014 when his solicitors were trying to contact him to make yet another Legal Aid application. Otherwise, it is clear from the chronologies that F cooperated with his solicitor in pursuing his appeal and, on a number of occasions, was pressing for news of its progress. In these circumstances, I concluded that, in the interests of justice, F should be granted an extension of time for his appeal, so that it is considered on its merits.

The Background to the Proceedings

23. M is now aged 19; F is 25. Their relationship commenced in 2000, when M was only 15 and F was in his early 20s. F has a long history of criminal convictions dating back to 2002. Although his offending has generally been at a relatively low level of seriousness in the offences themselves, the extent of his offending has resulted in repeated Community Orders, as well as custodial sentences in 2010 and 2011. In January 2013 he as made the subject of a Suspended Sentence Order for a range of driving offences. His most recent conviction was in May 2013 for obstructing a police officer and breach of the Suspended Sentence Order, for which he was fined and the operational period of the Suspended Sentence Order was extended. F has an admitted history of alcohol misuse.
24. M also had a troubled background with social care involvement throughout her life. Newcastle City Council Children's Services were involved before S's birth, with low level support provided to the family through the common assessment framework and probation support provided to F as a result of his Suspended Sentence Order.
25. Following S's birth, this support continued. In April 2013, there was an episode of domestic violence between the parents in which S was directly involved. On 9^th May 2013, the common assessment framework meeting recommended a referral to Children's Services. In June 2013, there was a further episode of domestic violence between S's parents, in the course of which M sustained injuries. This episode led to M and F's separation. On 24^th July 2013, a child protection conference in Newcastle made S subject of a child protection plan under the category of neglect. Despite the child protection plan, there were ongoing issues relating to a lack of cooperation with the plan, a lack of engagement with professionals and a lack of stability for S.
26. After a period of moving between Newcastle and Northumberland, matters in respect of S came to a head on 20^th September 2013 when he was accommodated by Northumberland County Council following the exercise of police protection powers. The precipitating circumstances related to M's new partner, the risk that he was considered to pose to S and M's failure to accept the risk.

The Proceedings

27. Care Proceedings were issued on 26^th September 2013. Marion Harris was appointed Children's Guardian at the outset of the proceedings. S has been subject to an Interim Care Order since 2^nd October 2013. It is to be noted that the orders produced by the Family Proceedings Court, including the case management order dated 15^th October 2013 and the order from the issues resolution hearing on 13^th February 2014, are not in the required Case Management Order format, including important prescribed information, although the drafts submitted to the court (which are also in the court bundle) used the then current template. At the issues resolution hearing the case was listed for a two day final hearing on 11^th March 2014. Although it is not stated in any of the Case Management Orders produced by the court, the case appears to have proceeded on a 26 week track, which was therefore due to expire on 27^th March 2014.
28. The local authority sought to undertake parenting assessments of both parents. In the event, M failed to engage with the sessions and did not put herself forward as a carer for S at the final hearing. Louise Dawson, S's social worker, completed a full parenting assessment of F on 9^th January 2014. Her detailed assessment report is at G85 to 128. Her analysis and conclusions from G123 onwards list what she considered to be the strengths and risks. She identified the following positives: F's commitment to care for S, to the assessment process and contact; his engagement with Probation, work relating to domestic abuse, contact with the Talking Therapies team and planned work to address anger management. In terms of the risk factors, in addition to F's history of offending, his history of domestic violence, alcohol misuse, poor previous engagement with professionals, limited acceptance or minimisation of issues of concern and limited support were highlighted. The social worker's assessment included a record of the contact she had with the paternal grandmother and her partner and what the social worker considered to be the limited support they could provide. The assessment recognised the progress that F had made in the proceedings, but concluded the 'best possible outcome' for S would not be achieved in F's care. The assessment recommended adoption for S to secure his future.
29. Louise Dawson's final statement, dated 17^th January 2014, summarised the various assessments and included a balance sheet analysis of the pros and cons of the placement options, with consideration of the Children Act 1989 welfare checklist. The statement confirmed the local authority plan of adoption. The statement filed by F in reply identified the work he had undertaken, set out his case to care for S, and responded to the local authority evidence.
30. The Children's Guardian's final analysis was completed on 10^th February 2014, in advance of the issues resolution hearing on 13^th February 2014. The Guardian's consideration of the placement options is contained in paragraphs 16 to 18. In the first two paragraphs she sets out the reasons why she rules out placement with each of the parents in turn. Her final paragraph questions the benefit of delaying a final decision in the context of adoption as a last resort, but ultimately supports a Care Order as providing 'a more certain prospect for [S]'s future wellbeing'. It is accepted on behalf of the Children's Guardian that this report does not include an analysis of the pros and cons of the realistic placement options.

The Final Hearing

31. At the outset of the final hearing, Mrs Kitching filed a position statement setting out F's case for further assessment of him and arguing that his mother and her partner had not been adequately assessed. F accepted that S could not be placed in his care immediately, but argued that he would be able to care, with support, within a reasonable timeframe for S.
32. Although F's case was that inadequate consideration had been given to the role that his mother could play, no statement had been filed from her in support of his case. There was no request by F for the court to hear evidence from her, although I was told that she was at court throughout the hearing. When I asked Mrs Kitching about this, she said that the paternal grandmother had been unwilling to give evidence, despite her (Mrs Kitching's) request that she do so. She said that the paternal grandmother felt 'anxious and ill-prepared' to give evidence, although she was at court throughout the hearing over a number of days.
33. The court was presented with an agreed basis upon which it was accepted by the parents that the threshold criteria were established. That document, with handwritten revisions to it, is at D17 to 18 of the appeal bundle.
34. On the first day the court heard oral evidence from Louise Dawson and Kim Wilson, a contact supervisor, and then commenced with F's evidence. The proceedings were adjourned overnight. F then completed his evidence, following which the Children's Guardian was called. The legal adviser's notes of evidence appear to be from the second day only, comprising part of F's evidence (it appears cross examination by the local authority and Children's Guardian), followed by the commencement of the Children's Guardian's evidence. The notes come to an abrupt end during questioning from Mrs Kitching about the Children's Guardian's analysis.
35. In submissions, Mrs Kitching gave an account of what she said then happened. It was not challenged by others, including the local authority solicitor's instructions to Ms Choudhury. Mrs Kitching says she was interrupted by the legal adviser when she started to cross examine the Children's Guardian about the absence of a 'B-S analysis'. Mrs Kitching said the legal adviser stopped her cross examination and said the Guardian had been ambushed by her questioning, that the issues should have been raised by F's solicitor at the issues resolution hearing and that the absence of such an analysis was a technicality.
36. This intervention clearly caused something of a hiatus. I was told by Mrs Kitching that she and Mr Patterson, the solicitor representing M, raised a concern with the court that the legal adviser's intervention suggested bias in defending the Children's Guardian and preventing cross examination of her. The case was stood down overnight.
37. When the hearing resumed the following day, F produced a statement dated 13^th June 2014 (at D21 in the appeal bundle) which appears to have been written the previous night, in which F set out his views that the legal adviser's behaviour suggested that he was, in effect, partisan. In addition, and unprompted by any direction, the Children's Guardian produced a further document (dated 12^th March 2014) at the resumed hearing, which set out a range of placement options, considering the advantages and disadvantages of each.
38. The Magistrates' reasons at D45 record that, although the assertion that the legal adviser had showed bias was not accepted by him, it was considered better for the remainder of the hearing to be dealt with by another legal adviser, as a result of which the case was adjourned to 24^th March 2014. The hearing resumed on 24^th March 2014 with a different legal adviser, when the case was concluded with evidence, submissions and the court's decision and reasons.

The Reasons

39. The Magistrates' reasons in support of the Care Order are at D1 to 10 of the appeal bundle. The significant majority of the document is a formulaic statement of basic principles. At D5 to 7, the Magistrates address S's welfare by reference to the 1989 welfare checklist. The conclusions at D8 to 10 set out the basis upon which the Magistrates reached their conclusions and their justification for their decision. Essentially, despite acknowledging some progress and F's stated willingness to work with professionals, the Magistrates questioned the timescale of the delay required and the uncertainty of the outcome. They concluded there was no realistic prospect of F becoming a good enough parent within a timescale appropriate for S. They concluded there was little evidence that F would put his learning into practice.

The Court's Approach on Appeal

40. The appeal is a review of the decision of the court below, in accordance with the FPR 2010, rule 30.12, unless the exceptional circumstances provided for in rule 30.12(1)(a) or (b) apply. In accordance with rule 30.12(2), unless it otherwise orders, the appeal court will not receive oral evidence or evidence which was not before the lower court.
41. Rule 30.12(3) provides that the appeal court will allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings of the lower court. The appeal court may draw any inference of fact it considers justified on the evidence, in accordance with rule 30.12(4).
42. Rule 30.11 provides that on appeal the court has the power to affirm, set aside or vary any order or judgment of the lower court. It may refer any application or issue for determination by the lower court and may order a new hearing, whether before the lower court or otherwise.
43. I am, of course, mindful of the advantage the Magistrates had of seeing and hearing the witnesses in the case and the need for caution in reversing a first instance tribunal's evaluation of facts. Specific findings are necessarily an incomplete record of the totality of the evidence and the impressions formed by the court from all the evidence in the case, which may not be articulated in the reasons, but which may nonetheless have played an important part in the court's overall evaluation of the evidence. When I consider the Magistrates' reasons and the sufficiency of them, I also take account of the fact that they are reasons from a lay Bench of Magistrates and not a professional judge.
44. The Supreme Court in Re B (A Child) [2013] UKSC 33 clarified the role of an appellate court where there is a challenge to the proportionality of a Public Law Order justifying the local authority's intervention under the Children Act 1989. That case, like this, concerned a care plan of adoption. In determining the welfare issues and whether a Care Order should be made, the first instance court's task is to comply with an obligation under the Human Rights Act 1998, section 6(1), not to determine the application in a way which is incompatible with the Article 8 rights that are engaged. The majority of the court in Re B held that the review of an appellate court in relation to the welfare analysis should be conducted by reference to whether the decision was wrong.
45. In Re B, paragraph 93, Lord Neuberger gave what McFarlane LJ described in Re G (A Child) [2013] EWCA Civ 965 as 'a helpful dissection of the various layers of possible appellate conclusion in any given case, in order to identify those cases where the first instance decision would be wrong' in seven possible outcomes, which lead variously to an appeal being dismissed or allowed. These illustrate the proper approach of a court on appeal, which must be fully alive to the duty for the court process as a whole not to contravene the duty in the Human Rights Act 1998.
46. In the present case, the local authority was inviting the court to approve a care plan of adoption. Such a plan involves an obvious and significant interference with the Article 8 rights of the birth family. The review of the decision as to welfare in this case is, in my judgment, properly considered on the basis of whether the decision was 'wrong'.
47. In Re G, the judgment of the Court of Appeal was given by McFarlane LJ. From paragraph 44 onwards, he considered the proper approach of the court when conducting a welfare balancing exercise in care proceedings. In that case, the central welfare question was whether the child should be rehabilitated to the mother or made the subject of a Care Order with a care plan of long term foster care. McFarlane LJ said that:

'A single holistic question of this type is, in structural terms, distinct from a series of isolated linear questions where, at no stage, are the pros and cons of each option balanced against each other in a single process.'

48. He considered separately the approach of the court in cases in which the care plan does or does not include the option of adoption. Where the local authority care plan is for adoption, McFarlane LJ said that the evaluation of the placement options must be undertaken in the context of the welfare provisions of the Adoption & Children Act 2002, giving paramount consideration to the welfare of the child throughout his or her life and with consideration of the welfare checklist in section 1(4) of that Act, which requires the court to consider the impact of the child having ceased to be a member of the birth family and become an adopted person.
49. At paragraph 49, MacFarlane LJ said that in most cases, a choice will fall to be made between two or more options. He went on to say that:

'The judicial exercise should not be a linear process where each option other than the most draconian is looked at in isolation and rejected because of internal deficits that may be identified, with a result that the only option left is the most draconian, which is then chosen without any particular consideration of whether there are internal deficits to it.'

50. At paragraph 50 he said:

'The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of these options best meets the duty to afford paramount consideration to the child's welfare.'

51. At paragraph 54 he said:

'What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared side by side against the competing option or options.'

52. The Court of Appeal judgment in Re G was given in July 2013. That judgment, together with a number of other important Court of Appeal decisions over the summer months and beyond have had a far reaching impact on the way in which courts undertake their welfare evaluation and reach a properly considered decision.
53. The Court of Appeal's decision in Re B-S (Children) [2013] EWCA Civ 1146 was given in September 2013. The judgment of the President, in the context of a care plan of placement for adoption, identified the need for proper evidence from the local authority and Children's Guardian, addressing all the options which are realistically possible, with an analysis of the arguments for and against each. The President specifically endorsed the need for a global holistic evaluation.
54. The judgment of the Court of Appeal in Re W (A Child) [2013] EWCA Civ 1227 was given in October 2013. Ryder LJ gave the judgment of the court. At paragraph 100, he said this:

'The local authority will set out in its evidence the range of services that are available in respect of each placement option and under each of the orders which the court can impose to best meet the harm and/or likelihood of harm identified by the court. The court undertakes the evaluation to determine what is best for the child.

1. What is the welfare analysis of each of the placement options that are available?

2. What is the welfare evaluation, that is the best option among those available?

3. What orders are proportionate and necessary, if any?

55. He went on, in paragraph 101, to say that the local authority is required to provide evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court.
56. In paragraph 102, Ryder LJ said:

'Save in the most complex cases, it is to be expected that local authority witnesses, Guardians and court appointed experts will address the issues identified by the court on the basis of alternative bases identified so that a holistic analysis can be conducted by the court wherever possible at the same time that findings are made.'

57. In Re B (A Child) [2014] EWCA Civ 565, the Court of Appeal, including Ryder and Black LJJ, gave further consideration to the role of the appellate court, in that case in the context of a second appeal. Ryder LJ identified a continuum between the court's analysis of welfare and proportionality, so that an error in the former would affect the latter.
58. Ryder LJ said that the task of the Appellate Judge is to identify the error of fact, value judgment or law, sufficient to permit the appellate court to interfere. Having done so, the judge then has a discretionary decision whether to remake the decision complained of, or remit the proceedings for a rehearing. The judge has the power in appropriate cases (and where fair to do so), to fill gaps in the reasoning of the first court and give additional reasons. If the appeal court decides that the error identified is sufficiently discrete that it can be corrected, or the decision remade, without the procedural irregularity, the appeal court may then be able to rectify the error by procedurally fair process, leading to the same determination as the first court. In such a circumstance, the order remains the same, the reasoning leading to the order has been added to or reformulated, but based on the evidence that exists, and the appeal is properly dismissed.
59. He went on to say that if the appeal court is faced with a lack of reasoning, however, it is unlikely that this will be appropriate. Even so, the appeal court should look to substance and form; the essence of the reasoning may be plainly obvious or available from reading the judgment or reasons as a whole. If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered, and in particular if evidence is missing, or the credibility or reliability of witnesses already heard by the first court but not by the appeal court is in issue, it is likely that the proceedings will need to be reheard.
60. Against this background, I have considered with care the sufficiency or otherwise of the reasons given by the Magistrates and whether they can properly provide the foundation for the orders they made. In considering this, I have taken account of the fact that the orders sought by the local authority provide for S's placement for adoption, thereby providing the most significant interference with the Article 8 rights of the birth family. I have, nonetheless, adopted what I consider to be a pragmatic approach, when considering the adequacy of the evidence before the court below and of the Magistrates' reasons.

The Arguments on Appeal

61. F's arguments on appeal can essentially be summarised under the following main headings: the absence of any adequate assessment of the paternal grandmother and her partner by the local authority; the absence of any evidence about other resources which could support a placement with F; gaps in the Children's Guardian's evidence in relation to these evidential issues and also her analysis of the placement options (or lack of it) in accordance with the 2013 authorities; the Magistrates' failure to give proper consideration to the proposed adjournment for a further assessment or work with the father; and the Magistrates' failure to undertake the required evaluation of placement options, assessing the pros and cons of each of them.
62. In their submissions in response, Ms Choudhury and Mr Finch realistically accepted limitations in the Magistrates' reasons dated 24^th March 2014. Ms Choudhury conceded they were 'not the best', but argued that the court could add to the reasons from the material available. Mr Finch, somewhat more robustly, accepted they fell short of the judgment that would be expected from a professional judge, but argued that the shortcomings were not a fatal flaw so as to undermine the court's decision. In each case, the local authority and the Children's Guardian argued that the court was provided with sufficient material to enable it to evaluate the placement options and that the Magistrates' conclusions provide a sufficient basis for their decision.

The Alleged Evidential Gaps

The Paternal Grandmother

63. Mrs Kitching argued before me, as she had before the Magistrates, that the assessment of the paternal grandmother was inadequate. The parenting assessment at G114 and G115 makes reference to what Louise Dawson considered would be only limited support available from the paternal grandmother and her partner. The force of Mrs Kitching's submissions was, in my judgment, significantly diminished by two factors: first, F's own evidence to the Magistrates (at G15 of the appeal bundle) of the limited support he would expect to be able to receive from his mother and her partner; secondly, the paternal grandmother's refusal to give evidence in support of her son so that she could tell the court of the support she would offer, thus giving the court a better opportunity to assess her and the need for further assessment of her by the local authority or otherwise.

Other Supports

64. As the 2013 case law has made clear, the local authority is required to provide evidence of the services available and practicable for each placement option being considered by the court. In my judgment, there is a gap in the evidence in this regard. The parenting assessment in the local authority's evidence refers to the support for F in terms of family support available (or not, as the case may be) and has not addressed the alternative resources through the local authority and other community resources.
65. The evaluation of F's ability to care for S in the future should properly be viewed in that context. It was not and could not be, in circumstances in which that evidence was not available to the court. The only mention in the Children's Guardian's evidence was in her supplementary document filed in the middle of her evidence, where she questioned whether any service would provide sufficient support and concluded it would not, without identifying what supports could be available to allow the court to evaluate them.

Gaps in the Guardian's Analysis

66. The Guardian's analysis at E12 to 13, paragraphs 16 to 18, is essentially in the form of a linear analysis. I was told that the Children's Solicitor said that the Guardian had not provided a global, holistic analysis because she agreed with the local authority. The absence of any independent analysis is significant, in my judgment, in a case which the Children's Guardian considered to be, as she put it, 'very finely balanced' and then proceeded to approve the Care Order with care plan of placement for adoption, without any analysis of the placement options.
67. The absence of any such analysis was, in my judgment, a perfectly proper and, indeed, necessary area in which the Children's Guardian should be cross examined. I have not seen a transcript of the exchanges between the legal adviser and Mrs Kitching which brought the hearing to a halt on 12^th March 2014 and I am aware from the reasons that the legal adviser does not accept any impropriety. This issue does raise a concern about the proper and fair process, or at least the perception of this, in circumstances in which questioning was apparently curtailed.
68. The Children's Guardian sought to redress this by the document dated 12^th March 2014. Although this identifies a range of placement orders (many of which were not relevant in the case) the analysis of the option of placement with F, as I have already indicated, lacks the identification of independent supports so that they could be evaluated.

The Court's Welfare and Proportionality Analysis

69. As McFarlane LJ said in Re G, where the local authority care plan is for adoption, evaluation of the placement options must be undertaken in the context of the welfare provisions of the Adoption & Children Act 2002, giving paramount consideration to the welfare of the child throughout his or her life and with consideration of the section 1(4) checklist, which requires the court to consider the impact of the child having ceased to be a member of the birth family and become an adopted person.
70. In the present case, the local authority final statement at C39 to 40 and the Magistrates' reasons at D5 to 7 address S's welfare in the context of the 1989 Act welfare checklist. The Children's Guardian's final analysis, at E11 to 12, addressed the impact of the current proceedings on S, which necessarily looked to his current situation. Her report does not otherwise address the longer term welfare issues and particularly in the context of adoption.
71. The court on appeal must, of course, look at the reasons as a whole to evaluate whether the court has given appropriate consideration to the factors identified in section 1 of the 2002 Act. The Magistrates' welfare analysis focuses very closely on the immediate welfare issues. Having read and re-read their reasons, I have been unable to discern any real consideration of the impact of adoption on S in terms of the loss of the birth family and his relationships with them, not only in the short term, but also in the medium and longer term.
72. This gap in the welfare analysis is, in my judgment, relevant to the proportionality evaluation. The Magistrates' reasons provide their conclusions for ruling out placement with F, but contain no analysis of the alternative placement option of adoption to provide the basis for a proportionality evaluation. There is no such evaluation. Ms Choudhury invites me to add to the reasons to fill the gap. Mr Finch argued that the reasons are implicit, from the Magistrates' approval of the local authority's care plan for adoption.

My Overall Assessment and Conclusions

73. It is clear from what I have said so far that I have identified errors in the proceedings before the Magistrates. First, the absence of evidence from the local authority and Children's Guardian of supports from local authority or other agencies (other than the paternal grandmother) should S be placed with his father, with an analysis of their adequacy or otherwise. Second, the gaps in the Children's Guardian's analysis of the placement options. Third, the flawed approach of the court to the welfare evaluation, where the local authority care plan was adoption. Fourth, the absence in the Magistrates' reasons of a holistic evaluation of the placement options and of a proportionality analysis.
74. Having identified these errors, I have considered whether there is sufficient in terms of the substance and form of the Magistrates' reasons to enable me to fill the gaps and give additional reasons. I have given this particularly careful consideration in the light of what I know about S's current circumstances and the impact of further delay. Despite my very real reluctance to prolong the proceedings and final decisions for S, I have reached the conclusion that I cannot do so, having regard to the nature and extent of the shortcomings I have identified. Having reached this conclusion in relation to the making of a final Care Order on 24^th March 2014, it is not necessary to consider the reasons and the decision in respect of a placement application on 7^th April 2014 in any detail, an application which would only follow the making of the final Care Order.
75. In these circumstances, I have concluded that the appeal must be allowed, the final orders made by the Magistrates must be set aside and a rehearing is required. In the course of my judgment I have expressed some disquiet at aspects of the proceedings before the Magistrates. I have identified a number of shortcomings in the proceedings before them: the four week delay in the provision of written reasons for the making of a Care Order; the apparent failure to provide the parties with the written reasons for making a Placement Order; and the provision of notes of evidence of only one out of three days of evidence. I have also recorded the failure of the court to provide Orders in accordance with the prescribed form, which I mention in relation to required good practice (although it is not material to the substance of the decision before me). I have also made reference to the Legal adviser's intervention during the course of Mrs Kitching's cross examination of the Children's Guardian, resulting in submissions of a perception of bias. I make it clear I make no finding or determination in relation to this. These issues have not influenced my determination of the appeal itself. I have, however, concluded that a rehearing should not be before the Magistrates, but before a judge. Subject to representations by the parties, I consider it appropriate to be listed before a Circuit Judge, although the availability of court time is a consideration.
76. I make it clear that my decision on appeal is no indication of the ultimate outcome of the rehearing. The appeal has succeeded because of the shortcomings in the evidence presented to the court below and shortcomings in the court's welfare analysis and proportionality evaluation. I am acutely aware of the potential impact of my decision, in circumstances in which planning for S has progressed to his placement with prospective adopters. I have, however, concluded that this fact cannot alter the conclusions I have otherwise reached in relation to the decision of the Magistrates. I very much hope that S's placement can be maintained until final decisions are taken to avoid further change for him at this stage. There are important case management issues to address. I will hear from the parties as to when that can be done.
77. This difficult and anxious situation could have been avoided. Firstly, the four month delay in lodging the appeal notice was, in my judgment, unacceptable. In my experience, appeal notices are lodged, if needs be, by the proposed appellant acting in person, while applications for Legal Aid are pursued and where reasons (or a transcript of judgment) are awaited. This has the obvious good sense that the parties and the court are aware of the appeal and can manage the situation accordingly. Secondly, communication between the respective solicitors could easily have avoided this situation. There should have been further correspondence from F's solicitor to the local authority, confirming that the appeal was still being pursued, bearing in mind the time that had elapsed since the decision and long after the time for lodging an appeal had expired. Where the local authority had been notified of a proposed appeal, it should have acknowledged receipt of the letter informing them of that proposed appeal and acted upon it. Most importantly, before proceeding to place a child for adoption in such circumstances, it is in my judgment incumbent on the local authority to check the position in relation to a proposed appeal of which it has been notified. They should have notified F's solicitor of the proposed placement in advance. I very much regret these failures, with their inevitable impact on the prospective adopters (who bear no responsibility whatsoever for the unfortunate situation in which S is now placed). I do not under estimate the potential impact on S.
78. I will therefore allow the appeal and set aside the Care Order and the Placement Order. I will make a further Interim Care Order. I direct a rehearing. As I indicated at the outset of my judgment, I will direct a transcript of my judgment to be expedited at the shared expense of the parties. In accordance with the President's Transparency guidance, the judgment will be published on BAILII in an anonymised form. I also propose to direct disclosure of the transcript of my judgment to the prospective adopters who are presently caring for S, so that they are aware of the circumstances in which this decision has been made.
End of Judgment

We hereby certify that this judgment has been approved by Her Honour Judge Hudson.

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