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31 MAR 2014

Re HC (Care Proceedings: Appeal from Care Order)

Re HC (Care Proceedings: Appeal from Care Order)

(Court of Appeal, Black, McFarlane, Lewison LJJ, 21 March 2014)

Care proceedings - Appeal - Process

The three children aged 10, 7 and 5 were subject to care proceedings due to concerns of neglect. During proceedings the two social workers and the guardian gave evidence but the parents, who had been assessed with low IQs and learning disabilities, did not. The justices acknowledged that the parents did not accept all of the local authority facts but found they had been verified and that the threshold had been crossed although not established to the extent submitted by the local authority. The justices found that the parents' behaviour was mitigated to a degree due to their level of functioning and that there was sufficient prospect of the children returning to the care of the parents. A supervision order was made permitting the children to return home. The local authority appealed.

That decision was overturned on appeal and full care orders were made. The parents appealed.

The appeal was allowed. It was permissible for the appeal court to set aside and make a fresh determination or to remit the case for rehearing but that should only occur where there was no alternative. In this case the process at first instance had been flawed and the justices had focused on the parents rather than the question of whether the child had suffered or were likely to suffer significant harm. It was not possible to understand how they concluded that the threshold had been met. The process had caused confusion. There was no alternative but for the case to be remitted for rehearing.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

Neutral Citation Number: [2014] EWCA Civ 536

Case No: B4/2013/3032 & 3138


Royal Courts of Justice
Friday, 21 March 2014

B E F O R E:


(DAR Transcript of
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Ms Ann Courtney (instructed by Rayat & Co Solicitors) appeared on behalf of the Appellant Mother
Ms Maggie Jones (instructed by Rowberry Morris) appeared on behalf of the Children's Guardian
Ms Jane Rayson (instructed by Joint Legal Team) appeared on behalf of the Royal Borough of Windsor and Maidenhead
Mr David Bannocks (instructed by Barrett & Thompson Solicitors) appeared on behalf of the Father

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[1] LORD JUSTICE McFARLANE: This is an appeal brought by the parents of three children. The children have been the subject of ongoing care proceedings in, latterly, the Reading County Court but prior to that before the justices sitting in Windsor and Maidenhead, since December 2012.

[2] The matter comes before this court because the justices, when they determined the matter on the first occasion, found sufficient promise in the prospects of the parents' care of the children that they made a supervision order under the Children Act 1989 providing for the children who had been in foster care during the interim period to return home. That decision was made on 23 August 2013 by the justices.

[3] The local authority sought to appeal that outcome. The appeal was heard by His Honour Judge McIntyre, sitting in the Reading County Court, on 2 October 2013. He overturned the justices' decision and, although the order that he made on that occasion provided for the question of whether or not a final care order and/or orders authorising the local authority to place the children for adoption should be adjourned and listed before him in three or four weeks' time, the text of his judgment given ex temporare on 2 October makes it plain that the outcome of the hearing would be the making of a full care order at the end of the day.

[4] The parents sought to appeal the judge's determination and I gave permission to appeal on 21 November 2013. Regrettably, it has taken since that time for the appeal to come on for hearing before us today.

[5] The children are a boy, C, born on 25 February 2004 and therefore now just ten years of age; another boy, L, born on 19 November 2006, now aged seven; and a girl, R, born on 3 April 2009 and therefore due to be five years of age in a fortnight's time. The father of the younger two children is married to the children's mother, and if I call him the father, although he is not the father of the eldest child C, that will be understood. The family the two parents and the three children live together, but there was a substantial and escalating degree of concern by the social workers and health care professionals who were engaged with the children over the period of some two years prior to their reception into care. It is not necessary for me to rehearse that detail in this judgment. I will turn to it in so far as it is necessary when reviewing the process before the magistrates. The case involves allegations of neglect, rather than any of more overt or direct child abuse.

[6] The hearing before the magistrates occupied some three days of court time, but we are told that the oral evidence presented to the court occupied just two days. The oral evidence called came from a social worker who had been involved with the case for some time, and then more recently a second witness, the current social worker, and then the children's guardian.

[7] The parents have each been assessed during the course of the proceedings as having a low IQ and having a degree of learning disability. That said, neither of them lacks litigation capacity. However, it was decided, we are told, and accepted by all parties and by the magistrates, that it was not necessary for the parents to give oral evidence at the hearing. Each parent had filed a short, sworn witness statement and the mother had indicated that, to a degree, parts of the schedule drawn up by the local authority setting out the matters upon which they purported established the threshold criteria under section 31 were conceded.

[8] In short terms, it seems from the very full notes of facts and reasons prepared by the magistrates that they were unimpressed, or less than fully impressed, by either of the two social work witnesses or the children's guardian, and despite the fact that the local authority case, based upon the facts that they said were established and the threshold criteria, was for the plan for adoption of all three children, the justices concluded that separation of the children from their parents was not proportionate and that, as I have indicated, the children should return home.

[9] The process before the magistrates was, however, in my view, badly flawed and indeed before this court none of the four parties who have made submissions to us argues to the contrary. I therefore will explain in as short a compass as I can what the magistrates did in approaching this case and why they were in error, before moving on to look at HHJ McIntyre's involvement in the case.

[10] The justices in terms of the structure of the written document they produced first considered matters under a heading entitled "The facts". They then indicate at paragraph 7 this: "The following facts have been provided by the Local Authority. We note that the respondents do not accept all the facts." They then rehearse a range of matters. In particular, and quite strikingly, they set out in bullet terms the particular matters of recent history from time to time that have been reported to child protection conferences, starting as far back as May 2011, all in relation to the category of neglect. For example, in using the phrase "striking", the very first bullet point in the first note of the first conference is in these terms: "February 2011 [R] was admitted to hospital with extensive burns to her arm, having vomited whilst lying in her cot asleep after biting into a detergent capsule earlier."

[11] At each turn, at each conference, the justices note the matters of concern from time to time, which all amount, to my eyes, to allegations of neglect at a relatively concerning level. Alongside all of this, reports of the behaviour of the eldest child, C, became more prominent in the case records. He was reported as showing increasingly aggressive and challenging behaviour. By the autumn of 2012 the level of concern was rising. A home visit to the house in November 2012 noted a marked deterioration in the home condition and the magistrates set out some detail there. At the same time, the parents were in financial difficulties and at the end of November a suspended possession order was made on their property.

[12] Matters were being monitored by the local authority. The time came on 10 December 2012 that the parents were told that the social services had decided to issue care proceedings. That resulted again, according to the note the magistrates have, in the father at the children's school being heard to say this: "That he 'would go on a murdering spree ... The children mean everything to [him] and [he] would hang himself'." These threats were reported to the police. The police understandably took them seriously and that led to the children being removed to foster care.

[13] That history, in much more detail than I have summarised, is set out by the justices, and they say this at paragraph 29: "We find that all of the above facts have been verified from evidence in the papers." So that section dealing with "facts" is bookended by the initial phrase of the magistrates saying that the facts have "been provided" by the local authority, noting that they are not accepted by the respondents in their entirety, but then concluding at the end of the recital with a statement that those facts have been verified. None of the parties before this court are really clear as to what "verified" is intended to convey in this document.

[14] Be that as it may, the magistrates then go on in fairly extensive detail to summarise the oral evidence given by the two social workers and the children's guardian. I am not going to quote from that at all. I have indicated that they formed an adverse view and that adverse view was recorded in this way in so far as the first witness is concerned. At paragraph 46, the justices say this:

"We found [Ms M's] evidence credible to an extent and felt she was well intended, but we were not convinced that she was of the opinion the Local Authority's plan was in the best interest of the children. We feel that [Ms M] was unable to point to evidence or substantiate what she was saying in support of the assessment of the parents and the Local Authority plans."

[15] In relation to the current social worker, a similar account is given:

"We found [Ms B's] evidence somewhat credible and well intended, but again we were not entirely convinced by what she had to say. [Ms B] was unable to point to evidence or substantiate what she was saying to support her assessment of the children and the Local Authority's care plans. For example, she was asked about issues about the children's relationships or lack of, and she stated this was evident in the contact notes. However, when the contact notes were produced she could not identify evidence to support her assertions. We believe there were a number of inconsistencies in what she was saying, which was further contradicted by questions and evidence presented by the parent's advocates, for example [Ms B's] conclusion in her report was based on her own two observations of the children and the rest on the Local Authority's papers. Her conclusion was that the children should be separated, but when questioned in relation to the foster carers checklist questionnaire to [Ms B] accepted that based on that there was no evidence to support the children being separated. We found this theme of acceptance to questions and statements put to her throughout her evidence undermined the Local Authority's care plan."

It will be noted in that extract that the justices drew attention to the fact that the social worker considered that the three children could be separated, whereas the foster carer's checklist questionnaire that the magistrates had seen indicated to the contrary.

[16] Pausing there, this court has now been told that further work has been undertaken with the children since the proceedings have been before the County Court and the strength of attachment between all three of them is now identified as being of such a level that it is not in the children's interest to be separated. So in that regard the magistrates seem to have been correct in questioning the plan of the local authority advocated by the social worker to whose evidence I have just been referring.

[17] The time came then for the parents to give their evidence, and, as I have indicated, they did not do so. I have no recollection of any case where parents have litigation capacity and where the issue is whether the children should go home to the parents or not has proceeded without the parents giving oral evidence to the court. Parents giving evidence in these circumstances face a stressful encounter with the court, but the courts understand that, and where, as it will have been the case here, the magistrates by that stage were seriously contemplating returning the children to the parents' care, I find it inexplicable that they did not ask the parents to give at least some short evidence before the court so that the magistrates could form their own opinion of the parents.

[18] Be that as it may, that did not occur. The final witness, therefore, was the children's guardian. Again the magistrates in extensive detail set out an account of her oral evidence but conclude at paragraphs 98 and 99 with a similar critique, which fails to fully endorse the guardian's contribution:

"98. We acknowledge [Ms W] is an experienced Guardian and is well meaning and well intentioned. Unfortunately, on this occasion we have not been assisted by her evidence and have not found her evidence convincing particularly under cross examination by the parents representatives. We believe that [Ms W] was, like the other two witnesses, unable to substantiate with evidence her assertions. We believe [Ms W] was unwilling to accept alternative explanations for issues in this case, for example [C's] behaviour and the parents' attitude to the parenting assessment despite there being evidence to the contrary.
99. We also found there were a number of gap[s] in her evidence. For example our main concern was in relation to [C] possibly having ADHD, [Ms W] is of the opinion he does not have ADHD but has an Attachment Disorder, instead which she thinks formed in his early years. When questioned about this, [Ms W] presented no evidence to corroborate her assertion or a convincing answer as to why in her opinion it was an Attachment Disorder as opposed to ADHD. Also there have been positive aspects to [the parents'] parenting, however we feel that this was not forthcoming in [Ms W's] answers. We have considered [Ms W's] written report and her evidence and have given both the appropriate weight as we assessed it to be in this case. We have not been persuaded or convinced by her evidence."

[19] Again, it is of note that the guardian's opinion was that C, whose behaviour was a matter of concern, did not come within the criteria of diagnosing attention deficit hyperactivity disorder. Again we have been told by the local authority in the course of this hearing that C has been further assessed and that is now the diagnosis that is attached to him, together with a diagnosis of attachment difficulties.

[20] The justices move on in their decision under a heading "finding of fact and section 38 threshold criteria". That is a reference to the interim provisions of the Children Act; it may be that they intended that to be "section 31 threshold criteria". In that section, in subparagraphs (a) to (p), they go through the local authority schedule point by point, and in each respect add their own observations to it. I am not going to reproduce the whole of that section into this judgment, but give one or two examples. At (c) they note that the father has a history of alcohol misuse but the justices say "we believe that this was in the past". Then at (d) and (e) they say:

"(d) [The parents] have been unable to protect the children from the domestic violence within the relationship and/or have exposed the children to domestic abuse within the relationship. In relation to this we accept there have been some difficulties in the relationship and that incidents have been reported to the police. We are satisfied that the children have been exposed to difficulties and arguments between their parents, but not to the extent as put by the Local Authority, eg, the children have been exposed to frightening adult behaviour. (e) The children have been exposed to frightening adult behaviours. See above."

[21] That is an important pair of paragraphs because a central plank of the local authority case was that the children had indeed been exposed to frightening adult behaviour, but here the justices say that they were satisfied that, although there were difficulties and arguments between the parents, the children had not been exposed to such behaviour. Then again at (h) the allegation is that: "The parents have failed to meet the children's emotional, physical and/or educational needs." The justices conclude: "We agree to this statement to some extent, as there is no doubt there have been concerns over the children's needs as outlined in the papers."

[22] So far as it goes, that observation begs more questions than it answers. It is not at all clear on this important topic of the children's global needs quite what the justices did and did not accept had been established. Then again at (i):

"The parents have failed to prioritise the children's needs and/or they have suffered neglect. We do not believe the term 'failed' is a fair one in relation to these parents. We believe that the parents have struggled to meet the [children's] needs and have just fallen short of good enough parenting, which has led to the children suffering significant harm due to neglect."

Again, two points can be made there: the justices clearly entertain a finding which falls short of the full allegation the local authority has relied upon, but there in the words the justices use, they indicate having in their reasoning some form of mitigation of the parents' behaviour allied to the analysis of the parents' level of functioning and their disability. That observation is mirrored in various other places and I would, without quoting them, refer to (k) and (m) where the parents' motivation is important to the justices and mentioned by them.

[23] The threshold criteria are not about attaching blame to parents or indeed do not need to contain or should contain any analysis of parents' motivation; the threshold criteria are child focused. The import of them is to analyse whether or not the child is suffering or is likely to suffer significant harm. The role of the parents' motivation and abilities does not form part of that.

[24] Having analysed element by element the threshold, at paragraph 101 the justices say this:

"For the reasons stated above, based mostly on the evidence that we have read in the bundles and in all the circumstances we believe that the threshold set out in s31 Children Act 1989 has just crossed the burden and standard of proof. There is no doubt in our minds that the children had suffered harm due to neglect but we had to assess the evidence further to determine whether the harm was significant or not, and on a balance of probabilities we are satisfied that the harm was significant due [to] neglect. Therefore the issue in relation to threshold has been resolved."

[25] The justices then, in their final section dealing with the welfare of the children, indicate that they considered this was a finely balanced case, the balance being between whether the court should make a care order or a supervision order, and they opt for the making of a supervision order. They give further reasons to support that, but they are in very general terms and are not based upon an analysis of the evidence in any detail. It was against that determination that the local authority appealed and they found that HHJ McIntyre readily accepted their appeal.

[26] Pausing there and taking stock of the magistrates' process, I too am concerned about what the record of their reasoning displays. It is difficult to understand how they could indicate that all of the detailed facts that the local authority had placed before the court had been "verified" if that means "proved", but then go on to hold that the threshold criteria, whilst established, was not established to the full extent that the local authority placed before the court. Secondly, I have indicated that there is concern about the failure of the court to hear from the parents in oral evidence. Thirdly, again I have indicated, the approach to the threshold criteria seems to me to be flawed in that it betrays in a number of respects a focus on the parents rather than a focus upon the experience of the children and the question of whether or not the children were suffering significant harm or were likely to suffer significant harm. Again, in relation to the threshold criteria, in the absence of understanding the detailed factual matrix upon which the justices were operating, it is hard to understand how they were able to pick and choose between the various elements of the threshold criteria schedule in the way that they did. Therefore, the result of the process was, to this reader certainly, confusion rather than clarity.

[27] The judge had before him the extensive bundles of paperwork that the justices had. He also was given (we understand on the morning of the hearing) 60 sides of A4 that had been photocopied from the handwritten notes prepared by the justices' clerk. It is not clear whether the judge had sufficient time to go through that written material, the clerk's notes; he certainly makes no reference to it in his judgment.

[28] Again, I propose, more shortly than I have done with the justices, to look at the judge's judgment so that the structure can be understood. Early in the judgment the judge refers to the Court of Appeal decision of Re B S [2013] EWCA Civ 1146 and he takes from that the emphasis transmitted by their Lordships in that decision upon the court remembering that a placement of a child outside his or her birth family is a draconian step and a step of last resort. With that in mind, the judge is critical of the justices' approach. He holds at paragraph 4 that they were "wrong" in their conclusion that the children should be returned to the parents' care. He is critical of the wording used, and in particular where the justices on a number of occasions do not speak in terms of "finding" a matter proved or not proved but talk in terms of "beliefs" or "feelings". He is critical of the justices, saying that their conclusions are not supported by the evidence.

[29] What the judge then does is to look at the threshold criteria, and at paragraph 5 of his judgment he says this:

"The evidence given by [the social worker witnesses] was in summary that by reason of the concerns regarding the parents' parenting, as described and set out in the local authority's threshold document ... which the Justices found had in all material respects been established, in the light of that evidence and those concerns the opinion and/or view of each of the witnesses giving evidence to the Justices was that the best option for each of these children was to grant the authority's application and endorse the care plan in respect of each of them and, as I will come on to say, the decision reached by the Justices really flew in the face of the evidence, both in terms of documentary evidence they had and the oral evidence that they heard given by the three witnesses to whom I have referred."

[30] That central passage of the judge's judgment is, in my view, in error. The justices, whilst finding that the threshold was crossed, did not accept the totality of the local authority's allegations in relation to threshold; far from it. I have given some examples of this. So it does not follow as night follows day, as the judge seems to describe in his judgement, that the opinion of the social workers based on the allegations that they were making was necessarily to be justified before the court. The justices took a different view of the threshold criteria and obviously they took a different view of the expert opinion of the social workers. So whilst the judge states his view that the justices' conclusion "flew in the face of the evidence", it seems to me that he misunderstood the findings, such as one is able to understand them, that the justices made in relation to the threshold.

[31] Moving on, the judge refers to the odd language used in relation to facts. He does quote from certain parts of the evidence. Then at paragraph 11 he displays a second error, in my view, in his understanding of the justices' process, and it is this. He says:

"... the Justices were concerned about whether it was appropriate to endorse the care plans for these children which envisaged their being separated from each other. On one reading of the reasons as a whole it seems to me that it could be said that the Justices fell into error and I will say they did fall into error, it seems to me, in allowing that concern to affect the kind of order that they thought should be made in the case."

[32] Again, with respect to the judge, the justices do not seem to have been unduly preoccupied with the question of whether the children should be separated or not; they simply did not accept the totality of the local authority's case against the parents in relation to the threshold and they were unimpressed by the two social work witnesses and the children's guardian.

[33] Having made those observations, the judge then goes on to review the evidence of the children's guardian. At paragraph 17 he repeats what I consider is an erroneous view of the justices' approach to threshold by saying:

"I do not think I need to say very much about [the threshold criteria] save that in all material particulars the Justices seem to have accepted the threshold criteria, the facts in support of the document produced by the authority and they went on to find that the criteria were satisfied."

For the reasons I have given, that was a misunderstanding, in my view, of the justices' approach.

[34] The judge then goes on to express his conclusion, which at a number of points, in particular paragraph 19 and paragraph 21, is that the children should not have been returned to the parents' care. He indicates that the welfare hearing is going to be adjourned, particularly in order that the question of whether the children should or should not be separated in their long term placement can be considered, but he indicates what the outcome in terms of whether a care order should or should not be made very plainly in these terms:

"The welfare hearing is adjourned, but I make it clear that the Justices' decision should have been to make care orders or to indicate that care orders were the appropriate orders to be made in respect of each of the children, subject to further consideration of the care plans in relation to the issue as to whether the children should be separated."

There was also, of course, the application for placement for adoption orders, which were again adjourned by the judge.

[35] As I have gone through the judgment, I have indicated the matters that cause me concern and the erroneous understanding that I consider the judge fell into in respect of his analysis of the factual background in the case. He can be forgiven for falling into that misunderstanding because, as I have already held, the justices' document is confusing. It may also be the case that the judge may have been approaching the burden of proof from a reverse position, because at paragraph 4 he says, "It was wrong because there was no or no adequate evidence upon which such an order could be based," the order there being the supervision order, and it is certainly arguable that the evidence should not have been looked at in that way but from the reverse perspective of seeing whether the local authority had proved that the more interventionist order, namely the care order, was justified.

[36] Having looked at the matter in those terms, I am afraid I form the clear view that the process before the justices was flawed in the way that I have described, but also that the process before the circuit judge was flawed. In looking at the hearing before the circuit judge, I am focussing my remarks entirely on the case before us and the material that we have in relation to that. The powers of a Family Court hearing an appeal are set out in Family Procedure Rules 2010 Rule 30.11. The provisions of that rule make it plain that the appellate court has a very wide spectrum of outcomes that it may deploy depending on the circumstances of the case before it. It is certainly open to a judge hearing an appeal from magistrates to set aside their order and remake the decision himself, as HHJ McIntyre purported to do on this occasion. Equally, a court may take a different view and could contemplate sending the matter back for rehearing.

[37] My Lady, Black LJ, will have more knowledge of the case, recently decided by this court, of Re V (Children) [2013] EWCA Civ 913, but in that case this court undertook the exercise of determining the outcome of the proceedings and in fact imposed an adoption order where a lesser order, long term fostering, had been endorsed by the lower court. The important point, it seems to me, is that if the appellate court is going to re till the ground and undertake its own evaluation, it has to do so with a view to undertaking that process in accordance with the Supreme Court decision in Re B [2013] UKSC 33 and the guidance from the Court of Appeal in Re B S and other cases. Where the material is available to the appellate court to undertake that process properly then of course it should do so, but in this case I am afraid HHJ McIntyre was not assisted at all by the material that came to him from the magistrates' process and, if he was going to reevaluate the proportionality of the plans for these children and indeed determine whether or not the threshold criteria were met, he had to undertake a process which was compliant with the guidance in Re B S so that he could undertake his own evaluation of proportionality.

[38] No court in the family justice system should readily contemplate allowing an appeal and sending a case back for rehearing. In my view such an outcome, namely the rehearing by another court, should only occur where it is established to be necessary on the particular facts of the case and there is no alternative, less burdensome process available to the appellate court. I am afraid in the present case we are in the position of having no alternative other than to contemplate now, at this late stage in these proceedings, requiring the matter to be retried before another court. That is a highly regrettable outcome. It arises because, for the reasons I have given, the process before the justices and then before the circuit judge was flawed.

[39] I would therefore allow this appeal. I would set aside the findings made by the circuit judge and indeed, if it is necessary to make it expressly the case, set aside the findings made by the justices, and order that the matter be redetermined at circuit judge level. That involves a rehearing. The rehearing necessarily has to contemplate looking at whether the threshold criteria are in fact established in this case or not. It seems to me that would be a relatively short process, it being as I understand effectively accepted by the parents that the threshold will be met, albeit not to the level or on the factual basis pleaded by the local authority. But whether or not the threshold is met, it seems to me inevitable that the court that determines whether or not these children should go home or to some other long term placement, be it adoption or otherwise, has to establish for itself a clear set of findings as to the factual background, namely the degree to which the children were or were not neglected when they were in the parents' care and the degree to which the parents are able to control their anger, to understand matters, to co operate: all the issues that are raised by the local authority. Because unless the person who makes the decision for these children's future has a clear understanding of what has gone on in the past, it is impossible, in my view, for that person to evaluate the risks, the pros and cons, the positives and negatives for the future.

[40] This process of rehearing has to happen as soon as possible. I would, if my Lady and my Lord agree, direct that this case be returned to the Reading County Court and be listed before HHJ Oliver, as the designated family judge for Reading, for a case management hearing during the next seven days in the hope that that judge is able to accommodate a speedy final hearing in this case so that these children, so long after they first went into interim care, can know what the future may hold for them. That is my judgment.

[41] LADY JUSTICE BLACK: I agree that the appeal should be allowed and the matter remitted to a circuit judge in the terms that McFarlane LJ has described, and I agree with all the reasons that he has already given in his judgment. There are just a small number of matters upon which I want to add something.

[42]Firstly, I want to add something on the subject of the parents not having given evidence before the justices. The justices were at a serious disadvantage by virtue of the parents not giving any oral evidence. In circumstances such as this, where a case is actively contested, it is very important that parents should give evidence. Family courts are well equipped to ensure that the experience of giving evidence is as easy as possible for parents and to make allowances for the impact of stress and emotion on the way in which the parents give their evidence, whether that stress and emotion arises simply because the process of the evidence is challenging for everyone or because the parents have particular difficulties as individuals.

[43] The process of giving evidence is the parents' opportunity to put their points to the court, to explain their actions and to set out their version of disputed facts. It is the court's opportunity to gather information, which is vital in order that the court can make reliable findings of fact, gauge the soundness of professional opinions that have been offered to it and make the difficult decisions that have to be made about the future welfare of the children.

[44] Secondly, I want to say something more about the situations in which an appeal court can substitute its own decision having allowed an appeal and set aside the order of the court below. When this can happen all depends upon the particular circumstances of the case. I do not seek to spell out what those circumstances may be, only to give one example, which is the case of Re V, to which my Lord has already referred. That was a decision of this court, but it is nonetheless relevant because this court operates under the same basic principles as an appeal judge sitting in the County Court. In that case, we substituted an adoption order for the long term fostering that the judge had determined was the right course for the children. There, he had made extremely detailed factual findings, so detailed that it was not necessary for the local authority to take this court to any of the documents because everything was contained within the judgment. In addition, no one in that case suggested that the matter should be remitted to another judge for a further hearing. It was accepted that in the event that we found that the judge below had gone wrong, an adoption order would be substituted. We felt that he had gone wrong in the conclusions that he drew from the factual material upon which he had made his comprehensive findings in that he did not give sufficient weight to the significantly detrimental features of the mother's contact with the children. It may perhaps be helpful to look particularly at paragraphs 9 to 11 of the judgment in this court, in which, amongst other things, we say that in the event that this court or another appeal court substitutes its own decision for the original decision then it has to form its own view as to the proportionality of the order that it is about to make because that is the order that interferes with the parents' and children's family life.

[45] Thirdly, I would just like to emphasise how important it is to differentiate between the facts upon which opinions are based and the opinions. It is for those reasons that we have concentrated upon the need for a factual matrix to be established in this particular case. Opinions are only as sound as the facts upon which they are based. If the facts that are material to the opinion are in dispute then factual findings will have to be made. More can be found on this subject in the decision that this court took last year in Re P [2013] EWCA Civ 963.

[46] Finally, on the subject of how facts should be found, I want just to say this: we do not contemplate in this case that there would be a separate fact finding hearing. This is the sort of case in which the facts and the welfare decision are to be taken at the same time. But that does not mean that the facts are found in any less thorough a way or are explained any less in the course of the resulting judgment. There is no difference in the fact finding process, whether it takes place in the context of a separate fact finding hearing or as part of a welfare hearing where the whole matter is considered at one time.

[47] LORD JUSTICE LEWISON: I agree that the appeal should be allowed for the reasons given by McFarlane LJ and Black LJ.

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