H (Children) 
Court of Appeal (Civil Division) Thorpe & Rafferty LLJ, Norris J
16 May 2012  EWCA Civ 743
Three children were taken into foster care as a result of domestic violence and their mother's mental health difficulties. The mother had achieved 13 months of stability in compliance with a treatment plan and the court was asked to decide whether the children should remain in long-term foster care or return to her. The independent expert witnesses all supported a rehabilitation plan and during the course of evidence the children's guardian switched her support from the local authority to the mother. The judge found against rehabilitation on the basis of what he described as 'ten uncertainties'. He made care orders and then proceeded to make placement orders on the basis of submissions only.
The judge had failed adequately to set out his reasoning for rejecting the recommendations of the experts and guardian, and had failed explicitly to address the right to family life of the children and of the mother. It might have been open to him to reach the conclusions that he did, but the lack of 'careful, explicit explanation [was] fatal to the care orders'. The judge was also criticised for making placement orders without the requirements of the Family Procedure Rules having been met. The court of appeal also disapproved of the guardian's position on the appeal, which was to 'sit on the fence'. The court accepted that although there should not be unnecessary representation of parties at appeals, the children and the court were entitled to...