Court of Appeal, King, Simon LJJ, 2 February 2016)
Case No: B4/2015/0436 & A & B
Neutral Citation Number:  EWCA Civ 61
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Cambridge County Court and Family Court
His Honour Judge Yelton
Royal Courts of Justice
Lady Justice King :
 This is an appeal from care orders made by His Honour Judge Yelton on 23 January 2015 in respect of two boys, JK born on 3 February 2003 (12yrs 11 mths) and JA born on 18 November 2005 (10 yrs 2 mths). The boys are the adopted children of Mrs and Mrs M (the parents).
 The parents accept that JK’s best interests can only be served by the continuation of the care order made in respect of him by the judge. They appeal only against the making of the care order in respect of JA. They seek the discharge of the care order and the immediate return of JA to their care.
 The key issue in the appeal is whether or not the judge was wrong in making the care order and in doing so had failed adequately to analyse and consider the question of whether JA could return home alone with adequate support from the local authority.
 At the hearing of the appeal on 19 January 2016, the appeal was allowed; the following judgment gives other reasons for coming to that decision.
 No one reading the papers in this case could remain unmoved; at the plight of these two young boy with their appalling life experiences to date and the poor prognosis for their future happiness, and feel pity for the parents who gave these children what was intended by all to be their permanent home and who love each of them dearly. Despite everything the parents do not admit defeat in relation to JA but wish, even now, to honour their commitment to him. Sadly for all parties, this case is a paradigm example of where the laudable desire on the part of a local authority to find an adoptive placement for profoundly disturbed and damaged children appears to have led to those children being placed with a couple who, with the benefit of hindsight, it might be thought were unlikely ever to have been able to cope with their, and in particular, JK’s, disturbed and challenging behaviour.
 JK and JA had been subjected to appalling neglect including physical and possibly sexual abuse whilst in the care of their birth parents. The children were removed from their parents by Suffolk Children’s Services in August 2007. At that time JK was already having violent fits of rage, and exhibiting sexually inappropriate behaviour towards his little brother. JK had a history of severely challenging behaviour, towards female carers and figures in an attachment relationship. Unsurprisingly against this background, the children had had multiple placements following their removal from their birth family, resulting in each new attachment they made to a carer being fractured as the placement broke down when their carers were no longer able to cope.
 Assessments were conducted on behalf of the local authority in order to determine the future needs of these little boys, Those assessments had been unequivocal in concluding that their best interests could only be served by the brothers being separated and living apart from each other.
 The children’s final foster placement before they moved to live with the parents was more successful than the earlier ones and things seemed a little more settled. The children started going to a primary school in a village which came under the auspices of Cambridgeshire County Council. The mother was JK’s teacher. She became aware that the children were to be separated and that Suffolk Social Services were struggling to find adoptive placements for the children. The mother and father, then in their mid to late fifties, and their own family having grown up and left home, decided for all the very best reasons to offer a home to both boys. Notwithstanding the assessment that the boys should live apart from each other, Suffolk Children’s services placed both boys with the parents on 3 September 2010 with a view to them being adopted by them in due course.
 Adoption orders were made in June 2013 but less than a year later, both boys were taken into care following an incident in May 2014 when JK arrived at school with his nose bleeding alleging that his mother had hit him in the face, whilst in the car on the way to school. The mother immediately accepted that she had slapped JK but she said it had been in circumstances where he was dangerously out of control and interfering with her driving of the car.
 JA has not lived with his parents since. Care proceedings were instigated and by the time the matter came on for trial, the threshold criteria had been agreed between the parties. The agreement was recorded in a document dated 20 January 2015. The pertinent part said as follows:
 Against the backdrop of this concession, it was the task of the court to consider whether it was in JA’s best interests to return to the care of his parents with local authority support.
 It follows that key to that enquiry was a consideration of what had gone wrong and why. The issue of the level of support which the parents had received and the nature and style of their parenting was critical to any assessment as to whether the relationship between JA and his parents could be rebuilt with appropriate support (therapeutic or otherwise). Also important was the question of whether the parents had the necessary understanding and insight into the reasons why their parenting style had caused the children significant harm, so as to enable them to provide the high level of care needed for JA with his particular needs and vulnerabilities.
Support for the parents when the boys lived at home
 The enormity of the task the parents faced when JK and JA moved to live with them can be seen throughout the papers but is encapsulated in the expert psychological report commissioned for these proceedings and prepared by Dr Leanne Horrocks who was jointly instructed by the parties and reported on 27 October 2014. She said:
 The mother had given up her job as a teacher in order to care for the boys full time. Between their placement in September 2010 and their subsequent adoption by the parents in June 2013, the family benefitted from considerable support from Suffolk Social Services. For a period of two and a half years, JK regularly saw his therapist; unfortunately, when the therapist left, JK was unable to establish a bond with a replacement trainee therapist leaving him without regular therapeutic input.
 The parent’s case at trial was that although things had been difficult initially, by 2014 they had what was to all intents and purposes, a normal family life. This they said was confirmed by the fact that Suffolk continued to approve the placement and supported the making of the adoption order in 2014. The judge did not accept the parent’s case saying, in brief terms in his judgment, that the parents had “wholly underestimated the problems they had and completely failed to appreciate the problems that there might be and which have happened in relation to JK”.
 The parents did not and do not accept that to be the case and put the subsequent failure of the adoption down to the fact that following the making of the adoption order, the support they were offered by the local authority in caring for these very demanding children, fell away, amounting only to the opportunity to attend courses in Suffolk, which courses the mother was unable to take up due to her commitment to caring for the boys. Things were made more difficult as the mother’s own mother had died somewhat unexpectedly in late 2012 which had caused the mother considerable distress over a period of time. The parent’s perception was not accepted by the local authority and the parenting assessment carried out by them within the care proceedings had concluded that the parents had had a great deal of support (particularly initially) but that they had found it difficult to seek additional support and help when it was needed.
 Notwithstanding this conflict of evidence, the judge made no findings about the level of support offered to the parents, whether they could, or should, have taken up/ sought support and whether the presence or absence of such support did, or would, have impacted on the way in which they chose to manage the challenging behaviour of the children. The judge’s finding in relation to this critical issue was:
 Dr Horrocks in her report recorded that post adoption support would have been “imperative for the adoptive parents”. In its absence she said that the adoptive parents “may not have had opportunity to reflect on their parenting practices” which:
 There are no findings (and no assistance can be found in the threshold findings) as to any causal link between the deterioration in the boy’s behaviour post adoption and parenting style identified as abusive at paragraph 3 of the threshold. The parents’ case is that there was a significant deterioration JK’s behaviour once the adoption order was made and they were receiving no support. The judgment does not however deal with the issue of post adoption support save in the vaguest terms; the court does not know for example whether once the adoption order was made, these boys remained ‘children in need’ as a consequence of damage caused to them in their early life which would have activated the local authority’s duties under section 17 of the Children Act 1989, or whether an assessment for adoption support services pursuant to section 4(1) of the Adoption and Children Act 2002 was ever carried out.
 Following their reception into care, investigations were carried out by the local authority; both boys made allegations that they had been hit and slapped by the parents; they also said that they had had soap put in or around their mouths when they had sworn and that JK had been put in cold showers when he had behaved badly. Information was also received from a member of the public that a prayer group meeting had been held at the home of the parents’ address because JK had ‘demons’ in him. When asked about this JK said that the meeting had taken place and that he had been held down by numerous people who had “spoken in a different language”.
 For a brief period of time in October 2014, JK returned to the care of his parents seemingly placed back home by the local authority as JK was repeatedly running away, was hitting his foster carers and making unsubstantiated allegations of being hit and sworn at by the foster carers. That temporary return home predictably came to an end on 15 October 2014 when JK physically attacked the mother.
 JA also had a change of foster placement following allegations made by him that his foster carers had shouted at him. JA has now been with his present current carers for over a year.
 When the care proceedings came on for trial, the social worker, Dr Horrocks and the children’s guardian each concluded that it would not be in the best interests of either child to return to the care of their parents.
 The judge made no findings as to the nature and extent of slapping and hitting of the boys (with or without implements), and did not refer to important background material such as the fact that the father had accepted that he had put JK under a cold shower as a punishment or that both he and the mother accepted that there had been a prayer meeting at their home during the course of which JK had been physically restrained whilst certain attendees at the meeting ‘talked in tongues’ around him.
 The judge referred only to the fact that the father accepted that he had “tapped or smacked or used mild physical violence towards the children”, and said in relation to the threshold findings:
 An agreed threshold findings document is intended, and usually allows, the court to proceed immediately to a welfare analysis without further investigation of the facts. The court would not wish it to be thought that it does not appreciate the work involved by all parties in reaching agreed threshold findings which address the gravamen of a case without becoming unnecessarily over elaborate or lengthy; nevertheless, certain aspects of the agreed findings may, from time to time, require further exploration. In the present case the parents appeared to be moving away from the generalised concessions made in the threshold when giving oral evidence. Further there was a significant gulf between the parties as to how the threshold was to be interpreted which was highly significant to the welfare analysis.
 The parents’ case was that lack of support from the local authority, and the impossible behaviour of JK, had driven them, on occasion, to slapping or hitting JK. The local authority’s case (whilst accepting that JK presented extraordinarily challenging behaviour) was that the parents were determined to manage things in their own way, which was by way of an inappropriate, damaging and punitive regime of discipline which went beyond a “tap” or “smack” as to both its nature and extent.
 The judge having heard evidence from the parents, social worker, the guardian and Dr Horrocks, gave a brief 33 paragraph extempore judgment concluding that neither child should return to the care of the parents. The judge quoted extensively from the report of Dr Horrocks but his welfare analysis and balancing exercise is found within two paragraphs as follows:
 With the greatest of respect to the judge, in my judgment, significantly more analysis was required. The learned judge appears to have accepted (paragraph 5) that the direct help available to the parents “fell away” following of the making of the adoption order. Dr Horrocks, as referred to in paragraph 18 above regarded parental support as imperative in assisting any carers of these damaged children. In my judgment, consideration of the undoubtedly compelling evidence of Dr Horrocks to the effect that JA should not return to live with his parents, had to be considered against a backdrop of findings of fact in relation to: