(Court of Appeal,
Elias, Ryder LJJ, Dame Janet Smith, 20 November 2014)
[The judicially approved judgment and accompanying headnote has now published in the Family Law Reports  2 FLR 615]
Public law children – Care
and placement orders – Appeal – Domestic violence – Viability of children
living with mother
The full judgment is available below
The parents’ appeal
from care and placement orders was allowed and a child arrangements order was
made permitting the children to live with their mother under a supervision
The father of two
children, now aged 10 and 5, inflicted a serious assault on the mother in the
presence of the children for which he was convicted and imprisoned. Following
his release from prison the parents reconciled and were married. An agreement
was drawn up with the local authority regarding the protection of the children
and the mother undertook domestic violence work.
After the father had a
disagreement with the maternal grandfather and smashed his windows in front of
the children the local authority initiated care proceedings. Supervision and
residence orders were made in favour of the mother. The father gave
undertakings not to have extensive contact with the children and not to return
to the family home.
However, the father
returned to the family home and there was a further incident of domestic
violence. Care proceedings were recommenced and the children were placed with
foster carers under interim care orders. At a final hearing care orders were
made on the basis of a care plan that the children should remain away from the
The parents appealed.
The mother had now obtained injunctive relief to protect herself and the
children from the father although he was now living in the
Weighing the positive
aspects of the mother’s case against the risk posed by the father, it could not
be said that placing the children in the care of their mother was an
unrealistic option. It was an option that deserved comparison alongside that of
long-term foster care. There were positives and negatives associated with both
options and a welfare evaluation was necessary on the facts of the case. That
lack of process was sufficient to allow the appeal.
There was risk with both options and the decision was
finely balanced. There had been significant changes in the family situation
which the court could not ignore. The appeal was allowed and a 12-month
supervision order imposed on the basis of the children living with the mother
under a child arrangements order. The father would have supervised direct
contact with the children. An injunction was put in place under the Family Law
Act 1996 for 3 years.
Neutral Citation Number:  EWCA Civ 1553
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE RODERIC WOOD)
Royal Courts of Justice
London, WC2A 2LL
Thursday, 20th November 2014
B E F O R E:
LORD JUSTICE ELIAS
LORD JUSTICE RYDER
DAME JANET SMITH
IN THE MATTER OF Y (CHILDREN)
(Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss D Murphy (instructed by Jung & Co) appeared on behalf of the Applicant Mother
Mr J De Burgos appeared on behalf of the Applicant Father
Mr S Coyle appeared on behalf of the LB Ealing Legal Services
Miss D Hughes (instructed by Creighton and Partners) appeared on behalf of the Children’s Guardian
J U D G M E N T
 LORD JUSTICE RYDER: On 7th January 2014 District Judge Gordon Saker, sitting in the Principal Registry of the Family Division, made care orders in respect of two sisters, who I shall call "R" and "S". They are now ten and five years of age respectively. The proceedings were brought by the London Borough of Ealing. The orders made were supported by the guardian on behalf of the children and were opposed by their parents. The orders made were appealed and that appeal was heard by Roderic Wood J on 7 March 2014, permission having previously been granted by Peter Jackson J. The appeals were dismissed and this hearing is a second appeal by both the mother and the father of the children.
 Their applications to make a second appeal were considered by McFarlane LJ on 13 August 2014 and permission was granted on limited grounds, which for convenience I shall summarise in due course.
 The background circumstances are as follows. The children's parents came to the United Kingdom from Afghanistan separately in the 1990s. They were married in an Islamic ceremony on 22 July 2002. The children were born in 2004 and 2009.
 On 26 September 2010 the children's father perpetrated a serious assault upon their mother in the presence of the children, for which he was prosecuted, convicted and imprisoned. There is a finding of fact relating to that incident which is that:
"... [the father] subjected [the mother] to a two hour assault, which involved him attempting to burn her feet, smashing glass objects on her head, threatening her with a knife, throwing a mobile phone at [R], assaulting [S] (then only 1 years old)... [The mother] was so badly beaten that she could hardly speak and was unable to walk for several days. She sustained injuries to her hands, eye, foot, scalp and shoulder. She was taken to A&E for her injuries. Even 10 days after the incident, [the mother's] injuries were still evident."
 At some stage after father's release from imprisonment the parents reconciled, and on 22 April 2011 they married in accordance with English law. An agreement was entered into between the children's mother and the local authority children's services department relating to the protection of the children, and in June 2011 the family again began to live together. Mother undertook some work to help her in relation to domestic abuse, but father declined to participate.
 In October 2011 father had a disagreement with the maternal grandfather of the children and smashed all of the ground floor windows of the maternal grand parental family home.
 Care proceedings were commenced by the local authority. A fact finding judgment was handed down on 11 April 2012 and on 6 February 2013 those proceedings were concluded.
 The court made supervision orders in relation to both children for one year and residence orders in favour of their mother. The basis for those orders was an undertaking given by their father which inhibited him, save in agreed circumstances, from having extensive contact with his daughters and/or from returning to the family home where the mother and children were to continue to live. It is important to note that neither the findings of fact nor the outcome of the 2012/2013 care proceedings was appealed.
 The basis for the orders then made included: (i) exposure of the children to violence and parental conflict; (ii) physical harm to the children; (iii) animosity between family members; (iv) neglect of the children; (v) lack of supervision of the children, and; (vi) lack of insight and engagement by the parents with the local authority.
 Father's undertakings to the court expired six months after the order was made i.e. in August 2013, but the overt basis upon which the proceedings concluded, and upon which the local authority was entitled to work for the protection of the children, was that the parents would only have contact with each other so as to facilitate the father's contact with his daughters. That much was acknowledged by mother at a meeting with the local authority on 17 September 2013 after the father's undertakings had expired.
 Sadly, the parents were being duplicitous. By no later than 3 October 2013, on their own evidence, the father was staying in the family home with the mother and the children for at least a part of the week.
 On the morning of 3 October 2013 there was another incident of domestic abuse, where father threatened to kill mother, throwing a kitchen towel at her. The older child was told not to tell anyone that her father was staying in the house; something she said to the children's guardian she was not comfortable with. Father threatened to execute his threats of violence and/or to kill mother that evening. Mother did not go to children's services or to the police. It was her sister, the children's aunt, who alerted the authorities. Mother brought the children back to the house to which she anticipated father would return that evening, and he did. She did not take adequate steps to safeguard them from the risk of emotional or physical harm until the police arrived, after which she co operated with the authorities.
 Public law children proceedings were immediately recommenced. An interim care order was obtained and the children were placed with foster carers, who they apparently knew from the previous proceedings. The local authority plan is, and was, that the children should remain placed away from their parents with new long term foster carers. At the conclusion of the proceedings care orders were made on that basis.
 The grounds of appeal can be synthesised into the following questions:
(i) Was the threshold satisfied so as to give the court jurisdiction to make statutory orders?
(ii) Was the court right to hold that there was no realistic alternative to foster care; that is, placement of the children away from their mother?
(iii) Was the welfare evaluation of mother's response to the proceedings and the need for her children to be protected wrong in the context of the following: (a) mother obtained injunctive relief against father on 18 October 2013; (b) father left to live in The Gambia; (c) mother refused to join father there, the very issue that caused the argument on 3 October 2013; (d) there has been no reconciliation, mother continues to live in her placement at the hostel, which could have afforded her 12 months of protected living with the children; (e) divorce proceedings began and have now concluded with a decree absolute; and (f) it is three years since the last actual incident of violence upon the mother.
 I add in parenthesis that if the welfare evaluation was wrong, would there be an inevitability on the facts of this case that the proportionality evaluation would have been different?
 At the final hearing the judge came to a conclusion about the threshold facts necessary to establish jurisdiction in the court to make statutory orders having regard to section 31 of the Children Act 1989. She said:
"It was their inability to sustain change and their lack of insight which caused the children significant emotional harm and made the children likely to suffer significant physical harm."
That threshold related to the conduct of both parents and the deceit they had perpetrated on the local authority and the court by breaking the trust explicit in the protective arrangements that were in place for the children. The events of 3 and 4 October 2013 might not have been the most serious in this family, but they were part of a course of conduct that ultimately placed the children at risk of significant emotional and/or physical harm before they were removed for their protection.
 In my judgment, there is no real merit in the submission that the threshold was not made out in this case. It related to the conduct of both parents, the previous findings of the court, which were serious, their breach of trust in respect of the protection of their children and, in the mother's case, her failure to act before she did.
 Father conceded the threshold and acknowledged the risk he presented. He continues to do so before this court. Mother obtained injunctive relief to protect herself against the risk to her and, by implication, her children. The risk gave rise to an undeniable potential impact on the children. The relative seriousness of the precipitating circumstance has to be viewed in the context of the history. The subsequent acknowledgement by the mother of the need for protective steps, with which she remains in agreement, and some of which she acknowledged very quickly, go to the welfare and proportionality evaluations, not to the threshold in this case. Not only was District Judge Gordon Saker right about this aspect of the case, Wood J was also right in his analysis of it on the first appeal.
 The real import of this appeal is that identified by McFarlane LJ at the permission hearing; that is, whether the judge had before her two realistic options for the care of the children that demanded a welfare evaluation, that is a comparison of one option against the other, to determine which was in the best interests of the children. At first instance the District Judge came to the conclusion that the parents' separation was not genuine or permanent. She came to the clear view that a future reconciliation was likely and that the children would again be at risk of significant harm. She held the mother could not protect the children from that harm because she did not accept that risk.
 The essence of that analysis, which was detailed and reasoned, was that the care of the children by their mother was not a realistic option. It was, as a consequence, not evaluated alongside the local authority's plan for long term foster care. There was only one realistic option for the court to consider.
 When the matter came on appeal to the High Court, the grounds of appeal identified whether it was right, on the facts of this case, to exclude care by the mother as an unrealistic option, with the consequence that no detailed welfare or proportionality evaluation were evident on the face of the District Judge's judgment.
 It is correct, as Wood J held, that the district judge had referred to the section 1(3) welfare check list factors and the need to consider the proportionality of the intervention proposed. It was submitted to him that reference to the exercise to be performed without an application of it is insufficient. To paraphrase the President in this court in Re B S (Children)  EWCA Civ 1146, that would be to pay mere lip service to the analysis and evaluation required if the option is realistic.
 Wood J came to the conclusion that the exercise performed by the first instance judge was sufficient given the findings she had made. In particular, he relied upon Re S (a child)  EWCA Civ 1835 at paragraphs 45 and 46. That is a case in which McFarlane LJ held that a welfare evaluation, that is a comparison of the benefits and detriments of each available option, is not necessary in a case where, on the facts, there is only one realistic option. Wood J agreed with the trial judge that this was a case in which, by analogy with Re S, there were no options to compare, and hence the judge's exercise was sufficient and right. The question for this court is whether that determination is right or wrong.
 In the recent decision of this court in Re M (A child)  EWCA Civ 1479, the obligations on the family court in public law children cases following Re B (A child)  UKSC 33 and Re B S (Children) (above) have been set out in full. I do not propose to rehearse them again. The five part exercise of judicial decision making is described at paragraph 33. The process of deductive reasoning involves the identification of whether there are realistic options to be compared. If there are, a welfare evaluation is required. That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors. The court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified.
 It will be a relatively rare case where there is only one realistic option such that there is nothing to compare against it and the proportionality evaluation is self evident. Re S was such a case. The facts of that case are materially different from the facts in this case. I cannot agree that this case is one of the rare examples that would follow Re S. I remind myself that the judge's findings were based in her assessment of the credibility of the parents. Those were quintessentially matters for a first instance court, with which an appellate court will be very slow to interfere. What was missing, however, was a holistic analysis of those findings by reference to the welfare check list. I tend to agree with the submission made in the High Court that to state the factors that are in play is not the same as applying those factors to the facts.
 The critical question to be asked is not whether the negative aspect, namely the risk of breach of trust, caused the option to be unrealistic, but whether the negative aspects and the positive aspects of the mother's care and the availability of protective factors taken together made the option unrealistic. The positive factors included mother's relatively immediate and sustained acknowledgement of the need for the protection of her children, including obtaining injunctive relief; the continuing availability of injunctive relief, which has only recently come to an end; the intended divorce; the reason for the incident, that is father's plan to go to the Gambia and mother's refusal to join with him in that plan; the fact that by the first appeal he had actually left to live in the Gambia; the fact that mother had not joined him; the fact that there has been no aspect of the subsequent factual nexus that has involved reconciliation; the protective living environment for mother and the children in the available hostel accommodation; and the length of time since the last incident of actual violence.
 These positive factors do not, in my judgment, suggest that the care of the children by their mother was an unrealistic option. The judge's findings set out a significant risk, but not one that inevitably ruled out care by the mother.
 Realistic is an ordinary English word. It needs no definition or analysis to be applied to the identification of options in a case. On the facts of this case there was an option that deserved comparison alongside long term foster care, where the children would in any event have to be moved, as they have been, to different foster carers with a risk of harm if that is not successful, and with obvious implications for contact when that occurs. There were positive and negative factors in respect of each option. A welfare evaluation was accordingly necessary on the facts of this case. The lack of such a process is sufficient for the appeal to be allowed.
 It is, however, necessary in order to consider this court's determination to look at the proportionality evaluation. I am forced to conclude that if the benefits of care by the mother were not considered and compared with the local authority's plan, then the proportionality evaluation of the District Judge cannot have continuing validity.
 The options in this case are not without risk. This is not a case where the children will have no future contact with their mother, and the father will come back into their lives at least for the purpose of limited supervised contact at some stage. Whatever the court decides, there will be risk. This is a finely balanced case. Such a case is a classic circumstance in which a proportionality evaluation may make a difference.
 My own judgment is that the benefits of care by the mother alone and I stress that fact outweigh the detriments, and that in a comparison of that alongside long term foster care, where the benefits likewise outweigh the detriments, there may be little between the options given the risks identified by the judge. On a comparison of one option against the other, I would regard care by the mother as being the option that is in the best interests of each of the children. If I am right about that, then the proportionality evaluation would inevitably follow and the children would return to their mother. I am, however, cognisant that this court should not simply substitute its value judgment for that of the first instance court. If I am wrong in my view, then the options are still closely matched. It is in a circumstance of this kind that the proportionality evaluation becomes critical. Is it right to remove the children from the care of their mother on a marginal risk analysis based on the credibility of the parties? For my part, on the facts of this case, I think not. The justification is not made out given the protections that are available. The emotional and physical care of the children will be at least good enough with their mother. It is only if the father returns to haunt the family that the children will be adversely affected.
 There have been some significant changes to the circumstances surrounding these children and the consequential risks since the decision of the District Judge and also since the decision of the High Court at the first appeal. This court cannot ignore those changes. It would have been helpful if the changes had been the subject of an application to adduce new evidence before this court. That said, some of those changes were in part or in whole known at the time that the first appeal was heard they are now common ground and accordingly are circumstances that this court must have regard to.
 I would allow the appeal and, given the material available to this court, substitute an order which allows the mother to continue to care for her children, namely a child arrangements order within which the children will live with their mother. Given that the threshold is satisfied, I would make a supervision order to the local authority for 12 months and an order that the father has supervised direct contact with the children, such contact to be supervised by the local authority and arranged by them on two occasions each year.
 I would make an injunction under the Family Law Act 1996 for a period of three years in the terms of the order that has lapsed, to make sure that there is continuous protection for the mother and the children from unauthorised contact with the father.
 Each of these orders will be on the basis of a transition plan to be agreed between the mother and the local authority, which is to be filed with this court within seven calendar days of today. The section 20 agreement that has been entered into between mother and the local authority, is such that the children remain at school until the end of this school term. That is to be filed with this court within seven calendar days of today as is the basis upon which the threshold is satisfied. I would allow this appeal.
 DAME JANET SMITH: I agree.
 LORD JUSTICE ELIAS: I also agree.