July 2014 Case Law Update
Re DE (A Child)  EWFC 6
Appeal by parents against refusal of an injunction to prevent the immediate removal of their child where he had remained at home under a care order. Appeal allowed and matter remitted for a full hearing.
The LA has commenced care proceedings when a child, D was born. D’s mother was on the borderline of a mild learning difficulty and his father had a more severe cognitive impairment. After a successful assessment, the proceedings had concluded with D remaining in his parents’ care under a care order. During the next 18 months, D remained at home but, the local authority claimed, it became increasingly concerned about his welfare; he was not meeting his developmental milestones and there were ongoing issues over safety. The local authority therefore decided that D must be removed and placed in foster care.
The only remedy for the parents in this situation was to apply to discharge the care order under s.39, Children Act. At the first hearing, the father’s solicitor also made an oral application for an injunction under s.8 of the Human Rights Act, relying on the case of Re H (Children) (Care Plan)  EWCA Civ 1009.
The district judge refused the application for an injunction to prevent the immediate removal of D on the basis that he had no power to grant it because that would require him to ‘go behind’ the care order which the parents had agreed to and which had not been appealed. In his judgment, he expressed the view that the application to discharge the care order was extremely unlikely to succeed. D was removed the following day and the parents appealed against the refusal of the injunction.
Baker J, allowed the appeal and remitted the matter for a full hearing.
The LA’s submission before the district judge that removal was justified because of the existence of the care order was ‘fundamentally misconceived’; it was only justified if the child’s welfare required it. Counsel who had appeared for the LA had made erroneous submissions as to the law and it was therefore not surprising that the judge had fallen into error in concluding that he could not grant the injunction. The district judge had also erred in taking into account his own view of the merits of the father’s prospects of success in the application to discharge the care order. The correct legal test should have been whether the injunction was necessary to safeguard the family’s Article 8 rights. The appeal was therefore allowed and the matter remitted for a fully contested hearing before the designated family judge within a two weeks.
He usefully sets out the relevant law under the European Convention and the Human Rights Act, and confirms the power to grant injunctions in these circumstances as vested in the county courts by the County Courts Act. He goes on to quote McFarlane J (as he then was) in G v N County Council  EWHC 975 (Fam)  1 FLR 774 where the high standards of evidence and assessment prior to a drastic change of care plan such as this were laid out in some detail.
Further, he describes the cases of Re B-S (Children)  EWCA Civ 1146 and Re B  UKSC 33 as having ‘changed the landscape’ in respect of decision-making in children cases. A similar standard of decision-making is required in this type of situation as in the situations faced in these cases:
Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002…. While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children)  EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application.
Finally, he gives general guidance, which was approved by the President, for future cases which conclude with the child remaining at home under a care order:
‘ To avoid the problems that have arisen in this case, the following measures should be taken in future cases.
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.
(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.
(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.
(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.
(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.
(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.’
Borough of Poole v W & Another  EWHC 1777 (Fam)
Application for adoption order which was opposed by birth parents who had been given leave to do so on appeal.
The case concerned the youngest of four children. The three older children had been made subject to care and placement orders and were subsequently adopted. The youngest child, SR, was removed soon after birth. Notwithstanding an unsuccessful appeal by the parents, care and placement orders were made and SR was placed with prospective adopters.
The parents sought leave under s.47(7) of the Adoption and Children Act 2002 (‘ACA 2002’) to oppose the adoption application; this was refused and the adoption order was made.
The parents successfully appealed the refusal of leave, and the matter was remitted for a rehearing which came before Hedley J.
Hedley J refused leave to oppose the making of adoption orders in respect of the older children but granted it in respect of SR. He went on to make an adoption order in respect of SR.
He considered the legal framework provided by the ACA 2002, noting the requirement for the applicant to demonstrate that the adoption would promote the child’s welfare and, where opposed, that the child’s welfare required that the consent of the parents be dispensed with.
He then went on to consider the relevant case law, quoting with approval Wall LJ’s comment in Re P (Placement Orders: Parental Consent)  EWCA Civ 535 that the best guidance was to “apply the statutory language with care to the facts of the particular case” and his observation that the use of the word “requires” in the context of dispensing with parental consent did not give rise to any “enhanced test”. The key difference in adoption cases lay in the difference between the welfare test set out in section 1 of the 1989 Act and that in the ACA 2002.
In Re W (Adoption Order: Set Aside and Leave to Oppose)  the court had set out the three stage test:
i) to establish the necessary change of circumstances
ii) satisfy the court that it should exercise discretion to grant leave and
iii) at the substantive hearing, persuade the court to “reverse the direction of the child’s life” and not to make the adoption order.
In Re W, reference had been made to the parents ‘winning the battle’ (by obtaining leave) but perhaps still losing the eventual ‘war’. Hedley J expressed similar views about the difficulties of the hurdle to be surmounted when granting the parents leave in this case. In this case, by the time the matter came to be heard, the child was settled in her placement and contact to her parents had ceased. Accordingly, in these circumstances, although the legal burden on the adopters remained unchanged, the parents nonetheless had a significant task in seeking to oppose what had “already been planned and approved by the court”.
The relevant questions for the court were:
(i) would SR survive the rehabilitation process?
(ii) would the parents survive that process?
(iii) would they produce parenting consistent with SR’s needs over her childhood?
From the child’s perspective, all the adult analysis would be incomprehensible; she was a child who had had to move and to break and re-form attachments to her carers. Her parents would be strangers to her. She only knew of the one world and family within which she was currently placed. With regard to the parents, the trial judge had found them incapable of caring for the children or changing in an appropriate timeframe. He had, however, noted changes by the time of the making of SR’s placement order (albeit that these were ultimately not considered enough for their appeal to succeed).
By the time of this judgment, it was accepted that the parents’ situation was very different and much improved in both practical and emotional terms. There were, nevertheless matters that led Hedley J to consider that they remained more emotionally fragile than they were aware of. He was not however “as troubled as others” by concerns about failure to accept responsibility for past events or issues in respect of working with professionals.
There were only two possible outcomes; an adoption order that would devastate the parents or a rehabilitation order that would have the same impact on the prospective adopters. Having set out the practical steps that would be involved in a rehabilitation plan, the Judge went on to evaluate the alternatives, bearing in mind the “lifelong perspective” required by s. 1(2) ACA 2002.
In respect of the relevant questions:
i) no one could know if SR would survive rehabilitation, which would involve breaking secure attachments and the loss of her current prospective adopters. There would be risk involved in moving her to the care of her (still emotionally fragile) parents and although the risk itself might be “modest”, the consequences of failure would, for SR, be “so serious”.
ii) as for the parents, Hedley J was more confident as to their resilience and thought they probably would “survive” a rehabilitation process.
iii) in respect of the third question, although the parents were confident they could parent throughout SR’s childhood, the judge did not fully share their optimism and his concerns were exacerbated by the gravity of the consequences if things went wrong.
Turning to adoption, the demerits of deprivation of being raised by the natural parents were clear. The other side of the coin though was that, overwhelmingly, children adopted at this age had, at least satisfactory, outcomes.
Having given the matter “most anxious care” and having been clear that no blame attached to the parents or prospective adopters and that he recognised the grief of the parents, the judge concluded that, in the light of his concerns about the child’s ability to survive rehabilitation process, the parents’ fragility and the risks of breakdown, SR’s welfare could only be safeguarded by adoption and he therefore made that order.
Re ZZ and Others  EWFC 9
Test to be applied when reviewing findings of fact in care proceedings due to new evidence arising whilst proceedings ongoing.
The case concerned six children aged 4 -17 at the time of the appeal. At an initial fact-finding hearing the district judge made findings that the father of the youngest four children assaulted both the eldest two children and the mother. Subsequently the eldest children retracted their allegations. Following an appeal the district judge conducted a review of the earlier findings. She found that the children’s retractions were not credible and refused to vary her earlier findings. The children were placed in a variety of family placements. The father of the older children appealed.
The President considered the case law on reviews of earlier fact-finding hearings and in particular two Birmingham cases: Birmingham v H and Others (2005) EWHC 2885 [‘Birmingham (1)’] and Birmingham v H and Others (2006) EHCA Civ 499 [‘Birmingham (2)’].
The President endorsed the three stage approach set out of Charles J in Birmingham (1), namely that the approach of the court to earlier findings is
i) Stage (1) the court considers whether it should permit any review of challenge to the earlier findings.
ii) Stage (2) the extent of the investigation and evidence concerning the permitted review
iii) Stage (3) the hearing of the review and the court’s decision on the extent to which the earlier findings stand.
This approach applies whether the issues arising before the same or a different judge, or within proceedings that are ongoing or concluded.
In relation to the stages the President departed from comments made in earlier cases and indicated that in relation to ‘stage (1)’ there needs to be solid grounds for challenge to earlier findings. Not speculation and hope. However the test should not be set any higher. Further, I
in relation to stage (3) the legal burden of proof is not reversed and remains with the party seeking the findings. References to a ‘high test’ on the party seeking to discharge is unnecessary and simply wrong.
The President upheld the district judge’s approach to the review and dismissed the appeal.
The President also commented that the problems that arose in this case could have been avoided if there had not been a split fact-finding hearing.
Re P (A Child: Assessment of Kinship Carers)  EWFC B73
Factors which the court should consider when evaluating an application for a further assessment of kinship carers.
The local authority applied for a care order and a placement order in respect of P who was 3 years old at the time of the final hearing. P’s mother was 14 years of age at the time of his birth and 17 at the time of the final hearing. P had been the subject of sporadic LA intervention from birth until he was made the subject of a child protection plan in August 2013. The mother had experienced poor and neglectful parenting as a child and had a significant criminal history which included a number of violent offences. The mother opposed the LA’s applications. The father had played no part in P’s life or within the application. At the time of the final hearing he was serving a term of imprisonment.
The mother accepted that the threshold was met. The principal issue for the court was whether P should be placed in the care of the maternal grandfather and his partner or a care plan of adoption should be sanctioned. The mother, supported by the children’s guardian, applied for an adjournment of the final hearing and for an independent social worker to be instructed to undertake a further assessment of her father and his partner. They had been the subject of a positive viability assessment and a negative kinship assessment undertaken by an independent social worker commissioned by the local authority. This latter assessment had recognised their commitment to P and his positive relationship with them but had concluded this these positives were outweighed by the numerous risk factors including domestic violence, difficult family relationships, drug and alcohol abuse and a history of suffering anxiety and depression.
HHJ Bellamy comprehensively summarised the law applicable to each step of the decision making in the case, included a consideration of Re B-S (Children)  EWCA Civ 1146, the impact of s.32 of the Children Act 1989 and the 26 week timeframe. The court considered the statutory conditions for the placement of looked after children and accepted that if it were accepted that it was in P’s best welfare interests for the court to make a final care order the local authority would only be able to place P in the care of the maternal grandfather and his partner if they were approved as foster carers.
The case also contains a useful consideration of the current guidance in respect of the role of, and attendees at, a legal planning meeting. It highlights the President’s observations in this regard in the and acknowledges that legal planning meetings have a very important role to play in a LA’s case planning, how such meetings are structured and who should be invited to attend remains flexible and is very much an issue for each local authority to determine. HHJ Bellamy also considered decision making by the Agency-Decision Maker and concluded that whilst the guardian’s views should be conveyed to the ADM there was no requirement that this should be done before the ADM makes his/her decision. In this regard HHJ Bellamy accepted that the advice given at paragraph 2.68 of the Statutory Guidance for Adoption does not accurately reflect the guidance given by the Court of Appeal in Re B (Placement Order) and, to that extent, is therefore wrong.
HHJ Bellamy rejected the application for a further assessment of the maternal grandfather and his partner. He then proceeded to undertake an analysis of the arguments for and against each placement option for P and approved the plan of adoption and granted the applications for a care order and placement order.
B (Children)  EWCA Civ 814
Application for permission to appeal findings of fact, placement of children with paternal grandparents under an SGO, and reduction in contact.
Application for permission to appeal was brought by the young mother of two children (aged 3 and 18 months), following the decision to place the children with the paternal grandparents under a SGO.
The parents largely accepted the threshold document alleging neglect, failure to engage with offers of support, exposing the children to domestic violence, and failure to prioritise the children’s needs. During proceedings, the children’s great-grandmother (AK) offered her home as a base for the mother to live with the children. An interim care order was made, with placement of the children with AK as a designated local authority foster carer and the mother continuing to live in the home with AK and the children. A written agreement set out that AK would be responsible for welfare decisions and would supervise all contact between the mother and the children. The children also stayed with the paternal grandparents for three days and two nights each week.
At a final hearing, it was asserted that whilst the mother and the children were living with AK, it was in fact the mother who was providing the primary care to the children, with AK taking a back seat; however this evidence was disputed. The mother advanced a shared care arrangement between her and AK. After three days of evidence, the judge decided to place the children with the paternal grandparents under a SGO.
In applying the welfare checklist, HHJ Watson concluded that whilst there are advantages in maintaining the bond with their mother, the children’s overriding need was for a secure and stable home. The judge considered that the removal of the children from their mother’s care and placing them with the paternal grandparents was justified in the light of a proportionality assessment considering the positives and negatives of each option. The judge concluded that the SGO was the only option that would offer the children the guarantee of a stable home life. Overnight contact with the mother was provided for to take place at AK’s home.
The mother issued a notice of appeal and a stay was granted in respect of the removal of the children. The mother’s grounds of appeal included that the judge had made errors of fact, that the SGO was not proportionate to the need to protect the children, and that insufficient consideration was given to the reduction in contact.
McFarlane LJ, giving the leading judgment; permission to appeal refused.
The Court of Appeal noted the considerable difficulties in challenging findings of fact made by judges at first instance, as the appeal court does not have the ‘wealth of detail’ that the trial judge had, including hearing the evidence and being able to assess demeanour. Although the judge dealt with the dispute as to the extent to which the mother was providing primary care to the children in judgement, the appellate court did not have any notes or transcripts of the evidence. It was therefore not possible to contemplate overturning the judge’s conclusion as to who, between AK and the mother, was the primary carer for the children.
In considering whether the order for placement with the paternal grandparents was wrong, the court considered that the criticisms of the judge’s approach to the proportionality argument fell away. The judge was right to consider that the mother’s proposed arrangement of shared care moving towards independence was a fundamental change rather than maintaining the status quo and there were significant concerns about the role AK would be able to continue to play in the light of her health. The judge engaged with the key issues and could not criticised for giving the greatest priority to finding a secure and stable home for the children now, which could only be achieved by placement with the paternal grandparents under a SGO.
The final issue raised was the substantial reduction in contact between the mother and the children. The appellate court noted that it is unlikely to engage in fine-tuning of contact arrangements unless it is plain that the judge made a fundamental error in analysing the relevant issues – there was no such error in this case. Any issues around contact should have been raised with the judge at first instance and could now be referred back to that judge to revisit the issue if justified.
H (Children)  EWCA Civ 733
Mother’s application to the Court of Appeal for permission to appeal against what she contended was a “pre-emptory”change of interim residence orders in respect of her three sons.
This mother sought to appeal the (interim) residence orders of Parker J made on 23rd December 2013 in respect of three boys, A, aged 15½, B, aged 13½and C, aged 11¾years. The mother and three children had been residing in a local Refuge although A, due a history of violent and destructive behaviour, spent some time residing with the paternal grandfather.
Parker J made a residence order for A to the paternal grandmother until further order and an order in similar terms placing the younger two boys under a residence order to the father as she had found that the mother had the tendency to emotionally manipulate the boys against the father, had encouraged them to make false allegations against the father, and had been obstructive to contact. The judge found that it would be “unsafe” for the children to remain with their mother pending further assessments. The order provided that the mother was to have one supervised contact session per week. The judge disagreed with the Social Worker and Guardian’s opinion that the children should remain with their mother for the time being with no contact with the father on the basis of their expressed wishes and feelings. The judge drew a distinction between those wishes and feelings which are “expressed” and those which are “ascertainable” and found that “ascertainable” often means that the Court has to look at actions rather than words and the children had shown to be more than happy to have contact with their father.
The central theme of the mother’s appeal was that the judge, who had been involved throughout, had reached a premature conclusion prior to hearing all the evidence such that it clouded her judgement once new evidence came to light. The main criticism was that the process was conducted unfairly, in relation to both the judicial interviews with the children and what she asserted was an unfair process.
McFarlane LJ, giving the leading judgment
Permission refused for the following reasons:
a) The judicial interview was conducted entirely in accordance with Guidelines for Judges Meeting Children who are Subject to Family Proceedings (April 2010)  2 FLR 1872). The guidelines make it plain that a judicial meeting is not for the purposes of gathering evidence but for enabling the “child to gain some understanding of what is going to on and to be reassured that the judge has understood him/her”.
b) The advantage of judicial continuity is that it allows the judge to form a view of the evidence as it unfolds in successive hearings and thus the judge was entitled to draw on the evidence she had heard at previous hearings, at the fact-finding:
“In a case such as this, where, fortunately, judicial continuity had been largely maintained, the proceedings before the judge, at successive hearings, should be regarded as one single process”
c) The judge had justified the orders made on the facts as she found them to be:
“An immediate change of the primary residence of children during the course of ongoing court proceedings, where further assessment has been ordered, must be supported by evidence which establishes that such an interventionist step is proportionate to the need to safeguard the children’s welfare on an interim basis.”
Q v Q  EWFC 7
Private law proceedings adjourned by the President as a result of the father having no access to public funds for legal representation
A father applied for contact with his 6 year old son. The father was a convicted sex offender, having convictions for sexual offences with young male children, one of which was committed during the proceedings. The father spoke little English and was dependent on an interpreter. Risk assessments concluded that the child would not be safe in the father’s presence and recommended no direct or indirect contact unless identified work was carried out by the father. As a result the father’s public funding was revoked and he acted in person at the final hearing. The lack of public funds also brought into question who would pay for the attendance of the risk assessor at the final hearing.
The mother argued for the father’s application to be dismissed on the basis it was totally without merit and further argued that a s.91(14) order ought to be made.
The President considered that as the risk assessment in part relied upon the mother’s account, cross examination as to whether the recommendations remained in the event that the mother’s account was incorrect, was proper and appropriate. In accordance with FPR 2010 1.1 the court was required to act justly and ensure so far as is practicable that each case was dealt with fairly and that parties were on equal footing. To dismiss this case in such circumstances was not dealing with the matter justly and fairly.
The President considered that there had to be an investigation as to whether funds could be made available for this father, it being in his interest, the child’s interest and also in the wider public interest of other litigants in a similar situation. There was a risk that if the process was not fair to one parent, that unfairness may disadvantage the child.
Accordingly, the President adjourned the proceedings for a short period and invited the Ministry of Justice, the Secretary of State for Justice or the minister for the Courts and Legal Aid to intervene to make submissions as to whether funds could be provided either from the Legal Aid Agency by route of another parties’ certificate or directly at the expense of the court in a situation where the court was of the view that such expenditure was necessary to ensure proceedings were just and fair.
W (A Child)  EWCA Civ 772
Interim care order made within private law proceedings pursuant to s37 direction –appeal by mother on grounds of procedural irregularity and incorrect application of the test for interim removal
A fact finding hearing was held within private law proceedings on a number of serious allegations made by the mother against the father. It was found that, amongst other things, the mother had wrongly suggested that the child did not want to see the father, believed that the father had been involved in previous abuse of the child by the paternal grandfather, had encouraged the child to make false allegations about the father, was “out of control” in believing her own propaganda and convincing the child of it and had encouraged the child to have an unhealthy attitude towards the father. Having previously made a direction under s.37 CA 1989 the judge had the jurisdiction to make an interim care order. He considered that the interim threshold was met and made an interim care order approving the child’s removal into foster care.
The mother appealed to the Court of Appeal. The mother’s appeal was opposed by the father, the children’s Guardian and the local authority (which, by the time of the hearing of the appeal, had made a public law application).
It was submitted on behalf of the mother that the decision to make an interim care order had been procedurally unfair as she had no effective notice of the judge’s intention to remove the child into foster care and was not permitted an opportunity to pursue alternative carers or the assessment of alternative carers before the step of removal was taken.
Ryder LJ, giving the leading judgment; appeal dismissed.
Held that the judge had made clear at a number of previous hearings and indeed during the fact-finding hearing, that he would consider removing the child from the mother if her allegations were not made out. Further, the mother had had an opportunity both during the adjournment over which written submissions were required, and also during the day when the judge’s decision was announced, to make proposals in respect of alternative carers. In any event, on the facts of this case, there would not have been a realistic prospect of the judge accepting the mother’s proposals for alternative carers in the absence of further assessments.
The mother’s other grounds of appeal centred on the decision itself, it being submitted on behalf of the mother that there had been no risk to the child’s safety that required immediate separation, removal was disproportionate having regard to the level of risk and less draconian steps being available and that the child’s welfare was safeguarded by the mother who had provided better than good enough care throughout her life.
All of these grounds were also rejected. Ryder LJ recalled that the test is as set out in Re LA (Care: Chronic Neglect) [2010 ] 1 FLR 80 and Re B (Care Proceedings: Interim Care Order)  1 FLR 1211, noting that “safety” is given a broad construction and includes emotional and psychological welfare. He held that the interim threshold had been met and the only question which realistically arose was whether the judge had exercised his child protection duties and powers proportionately. He held that, contrary to the suggestion that removal had been disproportionate, it would have been “unconscionable” for the judge to have left the child in the care of the mother, and no level of sufficient support and necessary protection for the child which could have been implemented with the child remaining in the mother’s care had been identified by anyone. The submission in respect of the mother providing better than good enough care in other respects had missed the point and that the child needed protection from the risk of emotional harm posed by the mother.
Ryder LJ confirmed that, given that a decision by a court to remove a child into public care engages article 8 of the ECHR, a welfare analysis and proportionality evaluation were necessary. In a case where there were more than one realistic option it would be necessary for the judge to summarise his conclusions in a “conventional balance sheet approach”, adding at paragraph 25 that “[a]n adequately reasoned judgment must deal with the reasonably available options and give them proper and focussed attention”. However, in this case, as there were no other realistic options, there was no more proportionate interference available than that contemplated by the judge, and no further analysis than that provided in the judgment was necessary.