SB v County Council

This is the judgment of the court, to which each of its members has contributed.

This appeal (for which Thorpe and Wall LJJ gave permission at an oral hearing on 6 February 2008) raises in a clear and straightforward way two points of considerable importance for the future development of the law and practice of adoption in England and Wales. The first is a pure point of law, namely: what is the proper test for dispensing with parental agreement to the making of a placement order under section 52(1)(b) of the Adoption and Children Act 2002 (the 2002 Act)? The second is a mixed question of policy and practice; namely is it a proper exercise of the power under section 52(1)(b) to dispense with parental consent to the making of a placement order, when the adoption agency in question proposes to conduct a search for both fostering and adoptive placements, and, depending on the outcome of the search, may well place the children concerned in separate long term foster placements if either or both prove unadoptable, and neither can be placed with the other?

A third question is implicit in the second, namely: is what had been called in argument “dual planning” – that is to say the simultaneous search for both long term foster placements and adoptive parents - a permissible use of the powers given to local authorities and adoption agencies under the Children Act 1989 (the 1989 Act) and the 2002 Act?

We have been invited to give guidance on these issues, and we are grateful for the considerable assistance which we have received from leading counsel for, respectively, the children’s mother and the local authority / adoption agency. We also have the advantage of a constitution comprising three family judges, and it is particularly appropriate that the third member of the court, Munby J, usually sits at first instance, and is thus able to bring to our judgment on this appeal his practical and recent experience of the difficult issues of law and practice thrown up by this type of case.

In addition, the particular facts of the case give rise to a question relating to post adoption contact, and the role of the court in ensuring that such contact takes place. This we discuss at paragraphs 141 to 154 below.

We have, however, two particular regrets. The first is that we did not have the further assistance of legal argument from counsel instructed by CAFCASS or CAFCASS legal on behalf of the guardian / the children concerned. For this omission the guardian herself, who attended in person and addressed us briefly, is in no sense personally responsible, and we were fortunate in that the scope of the argument advanced to us on behalf of the mother of the children concerned and on behalf of the local authority / adoption agency was, in the event, broad enough to compensate for the absence of specific argument from the children’s perspective.

Our second regret is that this was the only case in our list on the point. We say that because whilst raising the issues we are asked to address clearly, this appeal discloses extreme facts. Furthermore, a different constitution of this court (Thorpe and Hughes LJJ) addressed a similar point in Re T (children: placement order) [2008] EWCA Civ 542, [2008] 1 FCR 633 (Re T), a judgment handed down on 19 March 2008, during the period over which this judgment has been reserved.

Counsel in this appeal thus had no opportunity to address us on what was said by this court in Re T. We regard that as unfortunate. However, for reasons which will, we hope, be apparent, we see no inconsistency between Re T and the instant case, and we devote the final section of this judgment (paragraphs 156 to 160 below) specifically to the former.

We were told by counsel that judges up and down the country were anxious for guidance on the points raised, and in these circumstances we reserved judgement at the conclusion of the argument. We very much regret the delay which, as a result, has occurred between the date of the hearing and the date of this judgment.

The mother of two children, born respectively in June 2000 and September 2001 appeals against placement orders made by His Honour Judge Richards sitting in the county court on 12 October 2007. As this is a case to which reporting restrictions apply, and as the two children have identical initials, we shall identify them for the purposes of this judgment as D, a girl, who is the elder, and her full brother S, who is the younger. Their mother we shall call SB and their father RP. We shall describe the other players in the case either by initials or by reference to their respective roles.

SB, who is now 24, has altogether had five children. D is the eldest, followed by S. We have already stated when they were born. In August 2002, SB gave birth to C, and a little over a year later, she gave birth to K. In September 2006, SB gave birth to L. RP is the father of D, S and C, He is not the father of either K or L.

SB and RP had begun their relationship in 1998, when SB was 15 or thereabouts. She appears to have cohabited with RP from about December 1999, but in December 2003 they separated when SB left their accommodation. All four of the children then born remained in RP’s care. He clearly found the task of looking after them beyond him, and his difficulties culminated on 7 October 2004, when he assaulted S, and all four children were accommodated by the local authority, initially on an emergency basis.

In December 2004, the same local authority issued applications for care orders in relation to all four children, which were made in the county court on 16 November 2005.

On 7 September 2005, prior to the making of the care orders, the local adoption and permanence panel (APP) considered and accepted the local authority’s plan – as at that date – that all four children should be adopted. It recommended that C and K should be placed together, and on 3 January 2006, those two children were freed for adoption under section 18 of the Adoption Act 1976 (the 1976 Act) the statute which applied to their cases. C and K have since been adopted by a couple who are not related to any family members, and the point is made that those adopters – contrary to expectation and the fact that inter-sibling contact between all four children was a part of the care plan for each child - have not agreed to any contact continuing between C and K and the other children.

L was also the subject of care proceedings after his birth in September 2006. However, he has remained in his mother’s care, albeit currently under a supervision order in favour of the local authority. It is recognised by the local authority – a recognition warmly endorsed by the judge - that SB has done a great deal to turn her life around, and there is no question, as we understand it, of L being removed from his mother’s care. Equally, however, there is no question of SB, or their father, resuming the care of D and S.

Both D and S are seriously damaged children. We do not think it necessary, for the purposes of this judgment, to go into the precise detail of why D and S are so damaged, save to say that until they were removed from their parents’ care, it is plain that neither had received any, or any adequate, parenting. They had lived chaotic and unstructured lives, to the point that S was described as “feral” by Dr FH, one of the psychologists called in to advise in the case.

D and S has each had a series of placements since they were initially accommodated on 7 October 2004. On the following day, S was moved to another foster placement as his first carer found his extremely aggressive and disturbed behaviour impossible to manage. On 11 October 2004, D was moved from the emergency placement to what was intended to be a long term foster placement, where S joined her on 18 October 2004. However, the children complained about the foster carers’ allegedly physical chastisement of S, and this complaint led to a further move on 29 April 2005, and the retirement of the foster carers concerned.

On 29 April 2005, S went to live with specialist local authority foster carers and was joined at that placement by D. In September 2005, however, the APP acknowledged that further assessment and therapeutic work would be necessary with both S and D before a determination could be made as to whether or not their needs could be met by a placement together, or whether they needed to be placed separately.

On 14 February 2006, S left the specialist local authority placement as the consensus between his carers and the local authority’s social workers was that both children’s individual needs could be better met if they were in separate placements. In addition, S’s carers were unable to cope with his behaviour. S thus moved to his current placement with a single carer who is able to devote all her time to meeting his needs. D has remained in the specialist placement identified in the preceding paragraph.

In July 2006, the APP recommended that S and D should be placed separately from each other. That, as we understand it, remains the local authority / adoption agency’s current thinking, although if a placement was found which could safely and appropriately accommodate both, we do not think that the local authority / adoption agency would refuse to consider it.

A Looked After Children (LAC) review concluded at the end of October 2006 that “family finding” ought to be commenced for D. That resulted, we were told, in the identification of a possible adoptive placement, and D had a “farewell” contact session with her mother, whom she has not seen since. Complaint is made – and in our judgment is properly made – that contact between D and her mother has been terminated, even though the local authority has not obtained an order under section 34(4) of the 1989 Act authorising it to do so. There is evidence that the cessation of contact with her mother upset D. At about the same time, the LAC for S decided that “family finding” should include permanent fostering.

The local authority took expert advice. In mid December 2006 there was a meeting between D’s prospective adopters, the local authority’s social worker and a child and family psychiatrist from a local child and family centre. The latter recommended that D needed to become “more psychologically separated” from her birth parents before she would be ready to invest emotionally in new relationships. The same psychiatrist who, we were told, had not read the case papers, also recommended that S should no longer have direct contact with his birth family, and that he might not be ready to move to a permanent placement for about 12 months.

In January 2007, the APP recommended that there should be a “dual plan” of adoption and fostering for S. The same psychiatrist advised both that contact between D and her parents should cease, and that placement orders under the 2002 Act should be sought. Accordingly, the local authority applied for placement orders in relation to both children on 13 February 2007, and it was those applications which, in October, fell to be decided by the judge.

On 27 February 2007, in accordance with the final care plan, the “goodbye” visit to which we have referred took place between D and her mother. D also had her final “goodbye” contacts with her father and her paternal grandparents in March 2007.

On 29 March 2007, the court directed a psychological assessment of S and D by Dr. FH, together with an updated psychological assessment of SB by a different psychologist, Dr BR. On 26 April 2007, SB issued an application to discharge the care order in relation to D, and on 1 May 2007, proceedings which the local authority had instituted in relation to L were concluded with a residence order in SB’s favour and a supervision order in favour of the local authority. Later that month, SB’s application to discharge the care order in relation to D was consolidated with the applications for placement orders.

On 12 June 2007, there was a meeting of the professionals in the case. Dr FH outlined the children’s complex emotional problems, and this caused the consultant psychologist who had been instructed to assess SB to change her view that SB could cope with the return of D to her care. This, in turn, caused SB to withdraw her application for the discharge of the care order in relation to D.

On 19 June 2007, a care planning meeting was held at the local Adoption and Family Finding Unit (AFFU) and at a second meeting of professionals on 18 July 2007, RM, the key local authority social worker informed the meeting that he was going to return D’s case to the APP with a recommendation in her case also for dual adoption/permanent fostering planning. He told the meeting that the local authority / adoption agency’s plan (subject to the APP’s view) would be to look for adoptive parents for approximately six months, but if no progress had been made, he would take the matter back to the APP for a review.

On 3 October 2007, D’s case was referred back to the APP who recommended a dual plan - as sought by RM – in order to widen the pool of possible carers for D.

It was against this background that the applications came before the judge. In the light of the advice from Dr. BR, SB did not pursue her application to discharge the care order in relation to D, and in the event, the judge made placement orders in relation to both children, coupled with an order that, irrespective of where they were living, they should have contact with each other on at least seven occasions in each year. It is, of course, against the placement orders that SB appeals.

The dilemma to which these facts give rise is as easy to state as it is difficult to resolve. Given that neither S nor D can return to the care of their mother or their father; and given that there is no other family placement available for either or both of them, when and how should they be placed? In particular, should the children be the subject of placement orders? And should the placements to be sought be adoptive or long term fostering or both simultaneously? That is the dilemma with which the judge was confronted.

Before setting out the evidence available to the judge it is, we think, necessary to identify the relevant statutory provisions which the judge had to apply. A word of introduction is also, however, we think necessary.

It is not, in our judgment, controversial to assert that the 2002 Act reformed the law of adoption. As we understand it, the objectives of the reform were, broadly speaking, fourfold. As Wall LJ said in Re F [2008] EWCA Civ 439. the first was to simplify the process. The second was to enable a crucial element of the decision making process to be undertaken at an earlier stage. The third was to shift the emphasis to a concentration on the welfare of the child; and the fourth was to avoid delay. Thus, in the same way that good practice in planning for the future of children within the care system discourages parents and relatives from putting themselves forward at the last moment to care for a child, the 2002 Act seeks to facilitate the adoption process once the critical stages of care and placement orders - court proceedings in which parents are entitled fully to participate and in which the relevant decisions are taken by a judge - have been passed.

For present purposes, we do not think it necessary to set out in this judgment the terms of the various sections relating to placement orders. A summary, we think, suffices. In section 21 of the 2002 Act, Parliament introduced the new concept of the placement order, which is defined in section 21(1) as “an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority”. The circumstances in which the court is entitled to make a placement order are set out in section 21(2) and (3). Section 21(4) sets out the duration of placement orders.

Section 22 of the 2002 Act sets out the circumstances in which a local authority is required to apply for a placement order; see also the decision of this court in Re P-B (Placement order) [2006] EWCA Civ 1016; [2007] 1 FLR 1106 (Re P-B). Section 23 sets out the very limited circumstances in which the court is empowered to vary such an order. Section 24 identifies the circumstances in which the court may revoke a placement order and section 25 provides that when a placement order is in force, parental responsibility is given to the adoption agency concerned and to any prospective adopters with whom the child is placed. By section 25(4) the adoption agency which has parental responsibility “may determine that the parental responsibility of any parent or guardian, or of prospective adopters, is to be restricted to the extent specified in the determination”.

Sections 26 and 27 of the 2002 Act deal with contact between children placed for adoption and their birth families. The remaining sections in Chapter 3 of the 2002 Act are not material for present purposes.

Under section 52(1) of the 2002 Act, the court is empowered to dispense with the consent of a parent to the child being placed for adoption, and the effect of the dispensation is that the parent in question cannot oppose the making of an adoption order without first obtaining the leave of the court (section 47(5)). As section 52(1) is at the heart of this case, it is necessary to set out the relevant parts of it. It thus reads: -

In giving judgment in this case, the judge stated that he had considered sections 1, 21, 22, 27 and 52 of the 2002 Act. Section 1 is, in our judgment, of pivotal importance and has to be set out in full.

For reasons which will, we hope, become clear, contact between D and S and between both children and their siblings (as well as with their parents and paternal grandparents) is of particular significance in this case, and we propose, therefore, to set out the terms of both section 26 and 27 of the 2002 Act, which deal with contact in cases where placement orders have been made. Sections 26 and 27 are in the following terms:-

Finally in relation to the 2002 Act, although this case is about placement orders, and the circumstances in which parental consent to placement orders can properly be dispensed with, it would, we think be inappropriate to leave out of account sections 46 and 47 of the Act, which deal with the effect of adoption orders and the conditions which must be met before an adoption order is made. Thus the relevant parts of section 46 read:

Section 46(6) of the 2002 Act seems to us of particular relevance in the instant case. This reads: -

The relevant parts of section 47 of the 2002 Act read as follows: -

The third condition in section 47(6) of the 2002 Act is not material in the present case. The material consideration, for our purposes, is section 47(4)(b)(ii). The reason we have included the remaining parts of section 47 will, we think, be apparent when we come to a discussion of Re T (see paragraphs 156 to 160 below).

We were also referred to regulation 18 of the Adoption Agencies Regulations 2005, which is in the following terms:-

We were also referred to a great deal of other material, which we have read and taken into account, even though we have not thought it necessary to identify it. However, on the important aspect of “dual planning”, as operated in this case, there was no specific guidance, either from any government department or from BAAF.

The judge had a great deal of written material before him, and heard oral evidence from RM, Dr. FH and the guardian. We have a full transcript of the evidence of the first two: unfortunately, the tape appears to run out midway through the guardian’s evidence in chief, and we do not have her cross-examination. By agreement, SB was not called to give oral evidence: her position was clear, both from her written evidence and from the position stated by counsel on her behalf.

As we propose to give very substantial citations from the judge’s extempore judgment, it is, we think, sufficient for the purposes of this appeal for us simply to identify the material available to the judge, and the stance taken by the various professional witnesses. It will also be necessary to extract from the transcript of the evidence heard by the judge one or two of the exchanges which were, in our judgment, of particular significance.

There is, of course, no appeal against the care orders made in relation to both D and S. It is, moreover, common ground that neither child can be cared for in the future by either parent or within the wider family on either side. It is also plain that SB had a most wretched upbringing, which rendered her effectively incapable of caring for any of her first four children. It is therefore enormously to her credit that she has got herself into the position whereby she can care for L. To do so, however, will stretch her resources to the limit, and, as she herself acknowledges, there is no prospect of her caring for D and S.

It is equally a given in the case, as we have already related, that until they were removed in October 2004, the four children suffered significant harm due largely to the absence of any proper parental care, with the result that D and S, in particular, are badly damaged and very needy children.

The judge had written evidence from a number of social workers, and from the head teacher of D’s and S’s schools. The case for the “dual planning” was advanced by RM. There were medical reports on the children, and psychological reports from Dr FH. There was also a psychological report on SR from Dr BR, from whom it was unnecessary to hear oral evidence.

Dr FH, in her first report on the children, which is dated 11 June 2007 advised ongoing therapeutic work with both children, and in S’s case estimated that he required “placement stability” at least until April 2008 before he could be moved to a permanent placement. On 15 September 2007, following the professionals meeting on 7 August 2007, Dr. FH wrote of D that she “needs to know what the plan is. The legal format was irrelevant to D, but she needed to know whether or not she would be living with her mother or her father”. Dr FH made the point that contact with her mother was becoming a question of D’s rights, and that contact would be easier if she were in permanent foster care. Dr FH concluded:-

The guardian wrote two reports for the placement order hearing, one for each child. She had, of course, been the guardian for all the children in the care proceedings. One of the many points she made was that the relationship between D and S was of such importance that if placement orders were made, there should be an accompanying section 26 contact order for direct contact between the two children. However, she did not recommend a placement order for either child. For S, she said it would mean that he would have to wait longer whilst the search for adopters went on. She also believed that the risk of breakdown for S in adoption was high. Similarly, the planned placement order route provided least certainty for D, and was contrary to the “preservation of a meaningful sibling relationship”.

The quality of the oral evidence before the judge was plainly very high, and each of the professional witnesses who gave evidence comes across as giving evidence in a careful and considered manner. As the evidence was accurately summarised by the judge in his judgment, we propose to pick out only a few points which struck us on reading the transcript.

The first witness was RM. He was cross-examined about the cessation of contact between D and her mother. He accepted that he had had no legal basis to terminate D’s contact with her mother, and that D had been upset by the cessation of contact. He also accepted that the local authority’s actions in this respect had caused D suffering.

Although it is not determinative of this appeal, we find it deeply worrying that the local authority was able to terminate contact between D and her mother without the authority of, or even reference to, the court. In our judgment, it reinforces the point made by the guardian that the children’s right to contact with each other, in particular, needs to be safeguarded by a court order for contact.

The starkness of the dilemma faced by the judge seems to us to be encapsulated in an exchange between RM and counsel for the mother:-

RM accepted that adoption for either child probably closed the door to them being placed together, and he also accepted the proposition that once an adoption order was made, the local authority had no power to ensure that contact took place between the two children. He did not, however, accept that the cessation of such contact was a high risk. It depended on the matching and on the appropriateness of the carers chosen for the children. He also made the point that the local AFFU would not search for an adoptive family without a placement order having been made.

Dr FH made it clear fairly early in her evidence that she was not looking at the case from the “legal angle of placement order or no placement order”. She saw it from the children’s perspective and in terms of the children’s needs. One of the overriding factors for her was the relationship between D and S and that “whatever path is taken, that needs to be one of the overriding criteria that directs that path”.

We were concerned to see that, without correction from the judge, counsel for SB put to Dr FH the following proposition: “Once an adoption order is made, the court cannot make any further order as far as contact is concerned” and “if they (the adopters) choose to stop contact or they choose not to re-start contact, between D and her mother, there is nothing anyone can do about it. That is the reality”. To this proposition Dr FH replied that she understood it completely.

At another point, it was also put to Dr FH, by the solicitor acting for the guardian that “contact under the Adoption Act ceased to have effect on the making of an adoption order. Dr FH commented: “So the contact order would not ensure it after adoption” – although whether this was a comment or a question is not clear. At this point the judge intervened to say: “No, but what it does, is it means that the people who are signing up to it are signing up to it in the face of a contact order. Not just “eyes wide open” but the torch is shone in their eyes too”.

These, and other exchanges on the question of post adoption contact trouble us, and we will return to the question of contact post adoption later in this judgment. We simply make the point here that our understanding of the law is not that put by counsel to Dr FH, and it may be that Dr FH was advising on a false premise if she accepted the proposition put to her – as, indeed, she appears to do. In this context, as our later discussion shows, section 46(6) of the 2002 Act, which we have set out at paragraph 40 above, is highly material.

Cross-examined by counsel for the local authority, Dr. FH was prepared to accept that it did not really matter which pool (adoptive or fostering) the prospective carers came from, as long as they were the right people.

The judge summarised the position succinctly in paragraphs 2 and 3 of the judgment when he said: -

Having set out the history, and the fact that, during the care proceedings, it had been “patently apparent” that SB could not care for either child, the judge once again summarised the problem by stating in paragraph 18:-

The judge then gave himself the following directions on the law. These are important, and we propose to set them out in full:-

The judge then summarised the evidence of RM, Dr FH and the guardian. That summary, in our judgment, is full and careful. The judge was plainly impressed by the evidence of RM, and although the extract is lengthy, we think it important to set it out in full.

The judge began his summary of Dr FH’s evidence in the following way:-

He then continued: -

The judge then turned to the guardian’s evidence, which he summarised as follows:-

The judge then identified what he described as “one of the principal issues” namely his assessment of the risk that adopters would, on the one hand, provide permanence for the children, but could stop contact. Having said this, he went on to identify the five “specific and important needs” which the children had. These are set out in paragraphs 49 to 51 of the judgment:-

The judge then reached his conclusion in paragraphs 52 to 64 of his judgment. Once again, we propose to set these paragraphs out in full:-

There then followed further argument on contact between the two children, and the judge, importantly in our view, made an order under section 26 of the 2002 Act for contact on seven occasions in each year. There is no appeal against that order by any of the parties.

Whilst at this point reserving any comment on whether or not the conclusion reached by the judge was either right or wrong, we would like to express our admiration for what was an extempore judgment. It is, we think, both thoughtful and well-structured. The issues are clearly identified and sensitively debated. Knowing, as we do, the pressure under which the circuit bench has to work, and conscious, as we are, that our judgments in this case are designed at least in part to assist those charged with the difficult and sensitive task of hearing adoption applications, our view is that this is a helpful judgment, and demonstrates the careful thought which has gone into it. Others could do worse than to emulate its approach, and it is for these reasons that we have cited from it so extensively.

For SB, Mr Charles Geekie QC advanced three grounds of appeal. They were as follows:-

In support of his argument under ground 1, Mr Geekie reminded the court that in Re S (Adoption Order or Special Guardianship Order) [2007] 1 FLR 819 (Re S), at paragraphs 71, 72, in giving the judgment of this court, Wall LJ had made the following comment about section 52 of the 2002 Act:

Mr Geekie submitted that the provisional view expressed in Re S was at odds both with the ordinary meaning of the verb ‘to require’ and the intention of Parliament when debating and passing the 2002 Act. He placed particular emphasis on the meaning of the word “requires” in section 52(1)(b) of the 2002 Act. He supplied us with a number of dictionary definitions, and submitted that the common and central characteristics of those definitions were that they conveyed a sense of the imperative; something which was a necessity; and a demand which was the antithesis of something voluntary or optional.

In developing his argument, Mr Geekie took us both to sections 6 and 16 of the 1976 Act, and to the legislative history of section 52 of the 2002 Act. We do not think it necessary to our examination of Mr Geekie’s argument to follow him through his detailed analysis of the historical material. All three members of this court and, I anticipate, many readers of this judgment have, in their time, had to wrestle with the intellectual complexities imposed by section 16(2)(b) of the 1976 Act, In Re W ( an infant) [1971 AC 682, as well as with Lord Wilberforce’s parent “(hypothetically) endowed with mind and temperament capable of making reasonable decisions” – see In re D (Adoption: Parent’s Consent) [1977] AC 602 at 625.

It is, we think, sufficient for present purposes to record the test proposed in the 1992 Review of Adoption Law, Report to Ministers of an Interdepartmental Working Group: A Consultative Document, Department of Health and Welsh Office (HMSO, 1992) (“the 1992 Review”) which was considered by this court in the well known case of Re C (A Minor)(Adoption: Parental Agreement: Contact) [1993] 2 FLR 260.

The test proposed in the 1992 Review was :-

Mr. Geekie invited us to consider the Parliamentary material. After an erudite but essentially formal protest from Ms Thirlwall QC on behalf of the local authority, we duly looked at Hansard. Mr Geekie took us to clause 50(1) of the Bill introduced in the House of Commons on 19^th October 2001. This is in the same terms as section 52(1) of the 2002 Act. He pointed out that the Bill had been considered in the Grand Chamber of the House of Lords on 11^th July 2002 (HL Deb, 11^th July 2002, GC260 ff). Earl Howe, speaking for the opposition, had moved an amendment reflecting the 1992 Review. The amendment suggested that the test should be formulated in the following way, namely that: “adoption would be so significantly better for the child than any other option as to justify overriding the parent’s wishes”.

Baroness Andrew had responded for the government. Mr. Geekie placed considerable reliance on the following remarks made by the Minister:

Mr Geekie commented that Baroness Andrew’s reference to the need to “strike a balance” was an intended link to European case law and, in particular, to the case of Johansen v. Norway (23) EHRR 33. It was also plain, he submitted , that the government did not intend that there should be “a simple welfare test”. Thirdly, the reference to “the list” was clearly a reference to the welfare checklist in what is now section 1(4) of the 2002 Act. Mr. Geekie reminded us that section 1(4) contained the requirement that: “The court or adoption agency must have regard to the following matters (among others)”. These words, he pointed out, do not appear in the 1989 Act checklist. Reference to “an extra safeguard”, he submitted, summed up the purpose and intent of the deployment of the word “requires” in relation to dispensation with consent.

At the conclusion of the debate, Lord Howe had withdrawn his amendment pending further consideration. It had not reappeared. Mr Geekie submitted that its importance lay in the government’s response to it. That response was not to dismiss his concerns but, rather, to state firmly that they were met by the Bill and required no amendment.

In conclusion on ground 1, Mr. Geekie submitted that in paragraph 58 of his judgment in the instant case, which we have set out at paragraph 70 above, the judge had made a number of errors. He had applied a simple welfare test, not an enhanced test. He had approved a dual plan, a matter not sufficient to satisfy section 52(1)(b) of the 2002 Act. He had failed sufficiently (or at all) to weigh the rights of SB. And, finally, he had failed sufficiently to weigh the rights of the children in maintaining contact with each other.

The judge had thus been wrong, Mr Geekie argued, to conclude that the welfare of the children required dispensation with consent in a case where the social worker, RM, had given evidence that he was not of the opinion that adoption was better for the children than long term fostering. The judge was wrong to make the order sought in a case where the local authority view was that the “label” put on the placement was less important than the placement itself.

In relation to ground 2, Mr Geekie criticised the local authority’s policy not to look for adoptive placements unless they had a placement order. He argued that they were not seeking placement orders because they were “satisfied that the child ought to be placed for adoption,” as required by section 22(1) of the 2002 Act. In summary, as we understood his argument, adoptive and fostering placements were different animals. Adoption carried with it many more serious considerations for both parents and child. The proper course, accordingly, if adoption was called for, was to look for adoptive parents first, and only if that search failed, to fall back onto the search for a foster placement.

The local authority’s / adoption agency’s policy was, Mr Geekie argued, simply wrong, and the judge had in turn been wrong to accept that the stance of the local FFU had to be accepted and treated as the reality. He re-emphasised his submission that the 2002 Act had been carefully framed in response to the unique and irreversible nature of adoption. It was, accordingly, wrong that a local authority agency should be permitted to operate a policy the effect of which was to force into the ambit of the Act something which ought properly be dealt with outside it. The better approach would have been for the judge to have made the point that the policy was not consistent with the aims of the Act.

In relation to ground 3, Mr Geekie accepted that a judge was not bound to follow the evidence of an expert nor to accept the recommendation of a guardian. It was, however, well established that if a judge sought to depart from the advice of either he must be able to point to other evidence justifying such departure, and must give reasons which are sufficient to explain the departure. In this context, Mr. Geekie referred to the well known decision of this court in Re B (Care: Expert Witness) [1996] 1 FLR 667.

In the instant case, Mr. Geekie argued, the future of contact between D and S was integral to their future welfare. The evidence was that this vital contact was likely to be jeopardised in adoption. That theme was to be found in the evidence of the local authority, Dr FH, the mother and the guardian. It surfaced in both the written evidence and the oral evidence.

The capacity of adopters to support such contact was, Mr. Geekie submitted, doubtful in the extreme. The evidence of Dr FH on this point was particularly powerful. The judge has been wrong to prefer the evidence of RM, and had been wrong in paragraph 36 of the judgment to sum up RM’s view of the prospects of finding the type of adopters he sought as “a realistic possibility”. The professional evidence simply did not warrant such a view. In upholding it, the judge down played the evidence of Dr FH and the guardian in an unacceptable way.

In reality, Mr Geekie submitted, RM was offering little by way of reassurance when balanced against the interests in issue. Dr FH and the guardian were both pessimistic on the same subject. Dr FH was doing far more than entering a “caveat” with regard to contact. She stated contact to be of “overriding” importance; a “cornerstone”. She effectively made a recommendation against adoption: the course presenting the least risk to contact should be taken. She did more than present “two options”. The guardian had been of the same view.

The basis for the judge’s rejection of the evidence of Dr FH and the guardian was to be found in paras 55 to 57 of the judgment, which we have set out. The judge had found that the risk of losing contact in adoption was “potential” rather than “high”. The basis for that finding was the judge’s acceptance of RM’s commitment that only adopters who will support contact would be identified. Mr. Geekie submitted that the judge’s reasoning was not of sufficient force to displace the evidence and advice he had received, and that the judge had not been justified in placing the reliance that he did upon an individual employee of the local authority. The issue at stake was of central importance to the future welfare of the children. Reliance was placed upon RM but in ways that it was not within his power to deliver. He was not a member of the adoption team. He would not be responsible for selecting adopters. He could have no control over how selected adopters would actually behave (witness what had happened to C and K). He was, moreover, not the decision maker in relation to funding issues.

The judge had thus been wrong to reject the expert evidence advising him against placement orders. There was not sufficient alternative evidence either to warrant rejecting this advice or to justify a contrary position. In reaching a contrary conclusion the judge gave insufficient weight to several factors in section 1(4) of the 2002 Act, including the children’s particular needs, especially their need for contact with each other; the risk of harm if contact did not take place between them; and the relationship they had with each other and the wishes and feelings of SB.

It was the local authority’s case that it was in the best interests of each child to be adopted, but that if suitable adoptive placements could not be found then the children should be placed in permanent foster care. The children should continue to see each other post placement, whether it be adoption or foster care.

Miss Thirlwall invited us to take a pragmatic approach. In some straightforward cases, she submitted, it was possible to identify potential links from within the local authority’s approved pool of adopters. In this case an adoptive family was identified for D in 2006 but they had withdrawn when the extent of D’s difficulties became known. However, although further searches could be undertaken, the local authority’s policy was that no direct approaches were made using specific profiles before either written parental consent had been provided or a Placement Order had been made, nor was advertising used. That policy was not only lawful, but sensible.

It was, Miss Thirlwall submitted, the experience of the local authority’s adoption team that many agencies will put forward prospective adopters only when a placement order has been obtained. The reasons for this were simple: a hurdle to placement had already been removed, and the adopters could be reassured that delay would be kept to a minimum. The adopters were not involved in the placement order proceedings. Experience had shown that children without placement orders were at a disadvantage.

Miss Thirlwall went on to argue, however, that even with a wider search there might well be difficulties in finding suitable adoptive families for these children. It was for this reason that the adoption panel had accepted the recommendation for dual planning for each child, so that if a suitable adoptive family was not found for either child then D and S would be placed in permanent foster care. The search for foster carers was carried out at the same time as the search for adopters in order to avoid delay. Dual planning was a long established and effective way of avoiding additional delay if a suitable adoptive placement could not be found. It was, Miss Thirlwall submitted, practical, effective and lawful.

Specifically in relation to Mr Geekie’s ground one, Miss Thirlwall submitted that the judge’s interpretation of subsection 52(1)(b) of the Adoption and Children Act 2002 was correct. His application of it was also correct. Her submissions were very simple. By Section 1(2) of the 2002 Act, whenever a court was coming to a decision relating to the adoption of a child, “the paramount consideration of the court or adoption agency must be the child’s welfare throughout his life”. That sub-section applied here, and the judge had interpreted it correctly. It required the consideration and balancing of a complex and detailed set of factors including all the matters set out at subsections 1 (3) and (4) of the 2002 Act.

Miss Thirlwall did not dispute that the children’s article 8 rights were engaged in this process but they were, she submitted, wholly embraced by the terms of the section and no separate consideration needed to be given to them. The judge had applied the tests set out in Section 1 of the 2002 Act rigorously – see paragraph 20 onwards of his judgment. He had considered the issue of contact with great care (see paragraphs 31 onwards, and note paragraph 52 in particular). He had given proper consideration, as required by section 1, to the wishes and feelings of SB as expressed in the submissions made on her behalf.

Miss Thirlwall submitted that the judge’s consideration of section 52(1)(b) of the 2002 Act had rightly taken place alongside his consideration of section 1. He had correctly identified the legal framework (see paragraphs 19 to 25 of his judgment) and identified the correct test (see paragraphs 23 and 24). He had first decided, correctly, that their best interests would be served by adoptive placements and then considered the question of mother’s consent (see paragraphs 58, 60, 62 and 63). Miss Thirlwall submitted, simply, that where adoption was the best way of securing the child’s welfare throughout his life, the child’s welfare required that parental consent be dispensed with. That was the test the judge had applied, and he was correct to do so.

Miss Thirlwall further submitted that the word “require” must be given its ordinary meaning in its proper context. It did not and could not mean that adoption was the only possible outcome or that there was no practicable alternative to adoption. Were that to be the case then in every situation where an adoptive placement had not yet been identified, the question asked of the social worker in cross-examination would be: “what will you do if no adoptive placement is found?” Eventually the answer would be given that: “we would look for a long term/permanent fostering placement”. It would then be submitted that the child’s welfare did not “require” that consent be dispensed with. This would apply in every adoption which was not entirely straightforward. It would cut across the scheme of the Act by preventing the court from dispensing with consent unless an adoptive placement had already been identified.

The test for dispensing with consent now focused expressly on the welfare of the child. The submission that some different, higher, welfare test should be applied where consent was withheld would import into the section a concept that undermined the provisions of section 1 of the 2002 Act. Thus the court, having applied section 1 to determine the child’s welfare would have to revisit the issue, applying some higher or different test – perhaps applying a different standard of proof. Section 1 put a child’s life-long welfare at the heart of decision making about adoption. This, she argued, would be thwarted by the appellant’s suggested approach. It followed, she submitted, that the provisional view expressed by this court in Re S was the correct, indeed the only tenable view.

As to dual planning, Miss Thirlwall accepted that it was plainly wrong to say that the difference between adoption and fostering was merely a question of legal labelling. She acknowledged that they were fundamentally different types of placement, with profoundly different legal and practical consequences. The professionals meeting in June 2007 had reflected this: it had recognised the complexity of the children’s needs and the requirement to find particularly intelligent and insightful carers. Adoption was the plan, with permanent fostering as a back up.

The evidence of RM had to be seen in that context. The point he was making, she submitted, was that he would not recommend a placement in a family that was not a proper match just because it was an adoptive placement. It would have to be the right adoptive placement. The context in which the question was asked makes that clear. Whether or not the placement was the right one would be scrutinised on the application for an adoption order: see Re A, A Minor, TL v Coventry City Council [2007] EWCA Civ 1383.

Miss Thirlwall acknowledged that there were repeated references throughout the hearing to the “widening of the pool of families”. Plainly if a search was being carried out amongst prospective adopters and prospective permanent foster parents the number of possible prospective family placements was greater than if the search is being carried out in one group only. That was the effect of and the point of dual planning.

As to the timing of an application for a placement order, Miss Thirlwall submitted that where a local authority was satisfied that a child ought to be placed for adoption, it had to apply for a placement order – see section 22(1) of the 2002 Act. This provision ensured that children were not placed in prospective adoptive placements without the court having had any involvement, and without a parent having the opportunity to be heard. It removes the risk of what she described as “faits accomplis”. However, the provision did not mean that a local authority could not look for an adoptive placement before a placement order was applied for. There was no impediment to making the sort of search that was conducted in respect of D in 2006. In fact, of course, that search was instituted only after a decision had been made that adoption was appropriate in her case.

It was the local authority’s case that both children should be adopted and that suitable families could be found. All parties understood that, as the transcript demonstrates. That is what SB objected to. The policy in respect of a wider search related only to the timing of an application for a placement order, not to its necessity. Given that adoption was in each child’s best interests, and given that a placement order would improve the chances of finding adoptive placements more quickly, it was plainly right that the application be made at that stage, and not later.

The judge was invited to make a placement order to give the children the best chance of finding suitable adoptive homes. He was bound to take that into consideration when making his decision. Had he not done so he was effectively closing the door on adoption.

In relation to ground 3, Miss Thirlwall acknowledged that the critical issue was, once again, sibling contact. The guardian thought that, post adoption, contact would not happen. She relied partly on her experience in respect of the younger two children (C and K) and partly on her general experience of adoption. The judge considered her evidence carefully and set out in clear terms the reasons he disagreed with her conclusion (see paragraphs 43 to 62, in particular 43-48 and 55-62 of the judgment).

Dr FH’s evidence was evenly balanced, as the judge found. She accepted that adoption with post adoption contact would be the best outcome for the children but she also said that a route should be taken which reduced the risk of contact being stopped. The judge took her evidence into account but he concluded that the risk was a small one. No reasonable criticism could be made of the judge’s assessment of the evidence or of his conclusions.

In helpful written submissions, the guardian, who appeared in person, explained why she remained of the view that placement orders were inappropriate. She did so by means of a series of bullet points as follows:-

The guardian did not question RM’s genuine desire, on behalf of the local authority, to maximise the search for prospective carers who have all the skills identified as necessary to meet the particular needs of D or S. The guardian shared RM’s view that finding the right carers for D and S was a difficult task. The guardian believed that there was a strong likelihood that a compromise would ultimately be made in matching all of the children’s respective needs with what was available and this increased the risk of breakdown. The guardian’s view was that breakdown of an adoption placement would be more detrimental than moving foster placements because of the legal and psychological relinquishment of birth family that adoption usually requires.

It was also the guardian’s professional experience there was a stronger likelihood of sibling contact ceasing when siblings were split between adoption and permanent fostering placements, and the child in the foster placement maintained contact with birth parents. The local authority had acknowledged that sibling contact between C and K and their siblings had ceased when both were adopted.

We welcome the opportunity afforded by this case to revisit section 52(1)(b) of the 2002 Act, and with it, in particular, the phrase “the welfare of the child requires the consent to be dispensed with”. We propose, accordingly, to address firstly Mr. Geekie’s question: what is meant by welfare in section 52(1)(b)?

In our judgment, the answer to this question is self-evident, and is to be found in section 1 of the 2002 Act, which we have set out in full at paragraph 37 of this judgment. Section 1(1) plainly applies when the court is deciding whether or not to dispense with parental consent to a placement order. Such a decision is manifestly “a decision relating to the adoption of a child”. In these circumstances, section 1(2) of the 2002 Act requires the court (the word is the mandatory “must”) in these circumstances to treat “the child’s welfare throughout his life” as its “paramount consideration”. “Paramount consideration” as Lord MacDermott classically held in J v C [1970] AC 668 at 711 means a consideration which “rules upon and determines the course to be followed”.

In this context, in our judgment, “welfare throughout (the child’s) life” plainly means welfare as determined by the court or adoption agency, having regard to the matter set out in section 1(4) of the 2002 Act. Section 1(4) of the 2002 Act provides a checklist far wider than that provided in section 1(3) of the 1989 Act. If and insofar, therefore, as Re S gives the impression that the items which have to be taken into account when “welfare” in section 1 of the 2002 Act are equivalent to the so-called welfare checklist in section 1(3) of the 1989 Act, that impression is, plainly, erroneous. However, even a cursory examination of Re S demonstrates, I think, that this is not the case. Since special guardianship orders, which were the focus of the discussion in Re S are made under the 1989 Act, the debate on the appropriateness in any given case of an adoption order as opposed to a special guardianship order required consideration of both section 1(3) of the 1989 Act and section 1(4) of the 2002 Act – see Re S at paragraph 48 (i) and (ii):-

In our judgment, similar considerations apply to applications under section 52(1)(b) of the 2002 Act. The guidance is, we think, simple enough. The judge must, of course, be aware of the importance to the child of the decision being taken. There is, perhaps, no more important or far-reaching decision for a child than to be adopted by strangers. However, the word “requires” in section 52(1)(b) is a perfectly ordinary English word. Judges approaching the question of dispensation under the section must, it seems to us, ask themselves the question to which section 52(1)(b) of the 2002 gives rise, and answer it by reference to section 1 of the same Act, and in particular by a careful consideration of all the matters identified in section 1(4).

In summary, therefore, the best guidance which in our judgment this court can give is to advise judges to apply the statutory language with care to the facts of the particular case. The message is, no doubt, prosaic, but the best guidance, we think, is as simple and as straightforward as that. Moreover, it very much echoes what this court said in Re S in relation to special guardianship orders.

Without wishing to qualify in any way the clarity and simplicity of what we have just said, but in deference to Mr Geekie’s careful argument, we think we should add a few words about the Strasbourg jurisprudence to which he referred us.

Plainly Article 8 is engaged; and it is elementary that, if Article 8 is not to be breached, any intervention under Part IV or Part V of the 1989 Act, and any placement or adoption order made without parental consent in accordance with section 52(1)(b) of the 2002 Act, must be proportionate to the legitimate aim of protecting the welfare and interests of the child. As Hale LJ (as she then was) said in Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 at para [33]:

“under Art 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that there are three requirements: first, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be ‘necessary in a democratic society’.”

“Necessary” takes its colour from the context but in the Strasbourg jurisprudence has a meaning lying somewhere between “indispensable” on the one hand and “useful”, “reasonable” or “desirable” on the other hand. It implies the existence of what the Strasbourg jurisprudence calls a “pressing social need.” Hale LJ continued at para [34]:

She reiterated that in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, adding at para [28] that “Proportionality, therefore, is the key.” There is no need to refer in detail to the Strasbourg case law. A recent statement of the principle can be found in Haase v Germany [2004] 2 FLR 39 at para [93].

To the same effect is the judgment of Thorpe LJ in Re B (Care: Interference with Family Life) [2003] EWCA Civ 786, [2003] 2 FLR 813, at para [34]:

That last observation reflects the well-established principle, derived from section 1(5) of the 1989 Act, read in conjunction with section 1(3)(g), and now similarly embodied in section 1(6) of the 2002 Act, that, particularly in the context of public law proceedings, the court should adopt the ‘least interventionist’ approach. As Hale J (as she then was) said in Re O (Care or Supervision Order) [1996] 2 FLR 755 at p 760:

In assessing what is proportionate, the court has, of course, always to bear in mind that adoption without parental consent is an extreme - indeed the most extreme – interference with family life. Cogent justification must therefore exist if parental consent is to be dispensed with in accordance with section 52(1)(b). Hence the observations of the Strasbourg court in Johansen v Norway (1996) 23 EHRR 33 upon which Mr Geekie in particular relied. That was a case where the court had to consider a permanent placement with a view to adoption. At para [78] it said:

This is the context in which the critical word “requires” is used in section 52(1)(b). It is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective “requires” does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.

What is also important to appreciate is the statutory context in which the word “requires” is here being used, for, like all words, it will take its colour from the particular context. Section 52(1) is concerned with adoption – the making of either a placement order or an adoption order – and what therefore has to be shown is that the child’s welfare “requires” adoption as opposed to something short of adoption. A child’s circumstances may “require” statutory intervention, perhaps may even “require” the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily “require” that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is “required” is adoption.

In our judgment, however, this does not mean that there is some enhanced welfare test to be applied in cases of adoption, in contrast to what Mr Geekie called a simple welfare test. The difference, and it is an important, indeed vital, difference, is simply that between section 1 of the 1989 Act and section 1 of the 2002 Act.

In the first place, section 1(2) of the 2002 Act, in contrast to section 1(1) of the 1989 Act, requires a judge considering dispensing with parental consent in accordance with section 52(1)(b) to focus on the child’s welfare “throughout his life.” This emphasises that adoption, unlike other forms of order made under the 1989 Act, is something with lifelong implications. In other words, a judge exercising his powers under section 52(1)(b) has to be satisfied that the child’s welfare now, throughout the rest of his childhood, into adulthood and indeed throughout his life, requires that he or she be adopted. Secondly, and reinforcing this point, it is important to bear in mind the more extensive ‘welfare checklist’ to be found in section 1(4) of the 2002 Act as compared with the ‘welfare checklist’ in section 1(3) of the 1989 Act; in particular, the provisions of section 1(4)(c) – which specifically directs attention to the consequences for the child “throughout his life” – and section 1(4)(f). This all feeds into the ultimate question under section 52(1)(b): does the child’s welfare throughout his life require adoption as opposed to something short of adoption?

In our judgment, the judge in the instant case did exactly what is required of the court when dispensing with SB’s consent in the instant case. His directions to himself on the law, which we have set out at paragraph 64 of this judgment are, in our assessment, immaculate. The judge has followed the statutory language. He has applied the checklist in section 1(4). In short, he has not only applied the correct test, and has applied it correctly. Paragraphs 52 to 64 of his judgment, which we have set out at paragraph 70 of this judgment, apply the terms of section 1(4) to the facts of the case.

In our judgment, therefore, the first question arising from the issues identified in paragraph 2 of this judgment: has the judge applied the proper test for dispensing with parental agreement in the making of a placement order under section 52(1) (b) of the 2002 Act? can only be answered one way. Yes, he has. Accordingly, we reject Mr. Geekie’s first ground of appeal.

For completeness, we should add that, as our discussion of the Strasbourg jurisprudence seeks to emphasise, it will not be sufficient simply for a judge to use the words of section 52(1)(b) and section 1(4) of the 2002 Act as a mantra. Equally, the judge is the opposite of a “rubber stamp”. Self-evidently, careful thought must be shown to have gone into the process. The judge must make findings of fact which properly support the need to make placement orders and dispensation of parental agreement to them. In short, the underlying facts, properly analysed, must support the judicial conclusion. If they do not, the placement order may well be called in question.

The need for care, sensitivity and intellectual rigour on the part of judges hearing applications for placement orders is, we think, reinforced by the fact that applications for placement orders will, regularly, be heard and will need to be determined immediately after the court has made a care order in relation to the same child: - see Re P-B referred to in paragraph 34 above, and the unreported decision of this court in Re EN (a child) KN [2007] EWCA Civ 264. It is not so long ago that the grant of only a short adjournment between the making of a care order and the application to free a child for adoption (albeit in the context of a litigant acting in person) was held by the European Court of Human Rights to be a breach of ECHR Article 6: - see P, C and S v United Kingdom [ 2002] 2 FLR 631. Whilst is it highly unlikely that any parents having to face the prospect of immediately sequential care and placement order will be unrepresented, the likely juxtaposition of the two applications is, in our judgment, an additional reason for the court to examine the cases with particular care.

Equally, where an application for a placement order is sought against the background of a care order with a care plan for adoption, and the application is heard by a judge who has not made the previous care order, the judge considering the application for a placement order will, in particular, need to consider with care the way in which the judge who approved that care plan expressed him or herself in relation to the issue of adoption, the extent to which that judge addressed him or herself in terms not merely to section 1 of the 1989 Act but also to section 1 of the 2002 Act, and the extent to which there has, since the care plan was approved, been any change either in the circumstances or in the assumptions which underlay the care plan and, in particular, which underlay the plan for adoption.

We have found this a much more difficult question. However, we have come to the conclusion that a combination of the tests identified in section 1(1) and 1(6) of the 2002 Act in particular (which must, of course, be considered within the framework of section 1 taken as a whole) justify the local authority’s pragmatic approach to the question of the dual approach.

We accept Mr. Geekie’s submission that there are very substantial differences - both philosophical and practical – between adoption and long term fostering. At the same time, we were struck by what we perceived to be the tensions within his primary submission that, in cases where adoption was the correct option, the search should, for a given period of time, be for an adoptive placement only; and it was only if that search failed that the agency should then seek a permanent foster placement.

Whilst the logic of this approach – given the philosophical differences between adoption and fostering referred to in the previous paragraph – is impeccable, it is, in our judgment, inappropriately purist, and may not in fact serve the best interests of the child concerned. It is, above all, sequential in its approach, and part of the thinking, as we understand it, behind the 2002 Act was to move away from the sequential planning approach which, under the 1976 Act, had led to substantial delay in the placement of children.

In our judgment, a local authority can be “satisfied that the child ought to be placed for adoption” within the meaning of section 22(1)(d) of the 2002 Act even though it recognises the reality that a search for adoptive parents may be unsuccessful and that, if it is, the alternative plan will have to be for long-term fostering. The wording, after all, is “ought to be” not “will be”. That being so there can be no objection in principle to dual planning in appropriate cases.

There can moreover, be compelling pragmatic reasons for adopting dual planning in appropriate cases. In the first place it may shorten the period during which the child has to remain in limbo, a very important consideration particularly if the child is older or has already been in the care system too long. There is, in addition, the important point made by Miss Thirlwall. As experience shows, there are, even now the 2002 Act is in force, many prospective adopters who will come forward only if a placement order has been obtained. The experience of trial judges, as Munby J confirms, is that many local authorities believe, and seemingly with good basis for their belief, that a search for adoptive parents without the benefit of a placement order is a search within an artificially restricted pool. That cannot be for the benefit of the child.

In our judgment, there is also the important factor that adoption in England and Wales is, as we understand it, no longer largely about the adoption of babies, but about children like D and S who are older, and who have had conscious experience of being parented by their birth mother and father. In the instant case, the effect of that parenting on both S and D has been seriously adverse. Placing a baby for adoption, by comparison, has none of the difficulties associated with the placement of D and S, and Mr. Geekie’s sequential approach may well be appropriate for such a placement. Given the change which we have identified, however, we are satisfied that the local authority / agency approach to dual planning in the instant case, and in like cases, is permissible as a matter of welfare – see, in particular, sections 1(3), 1(4)(b) to (e) and section 1(6).

It follows, in our judgment, both that the local authority’s dual planning approach for D and S is legitimate, and that the judge was entitled to embrace it. He was entitled, applying section 1 of the 2002 Act to take the view that adoption was in the best interests of both children, but that if suitable adoptive placements could not be found then the children should be placed, separately or together, in foster care. In our judgment, the reasoning process set out in paragraphs 52 to 64 of his judgment was properly open to him, and should not be disturbed by this court. It follows that the appeal must be dismissed.

We approach this part of our judgment with caution, as we are conscious that these are early days, and the manner in which adoption agencies apply the terms of the 2002 Act will need to be worked out in practice over time. That such agencies may not fully have grasped the principles behind the 2002 Act is, we think, amply demonstrated by this court’s recent decision in Re F (a child) [2008] EWCA Civ 439. We therefore offer the following guidance.

Historically, post adoption contact between children and their birth parents has been perceived as highly exceptional. We can, we think, begin our analysis with the decision of the House of Lords in Re C (A Minor) (Adoption Order: Conditions) [1989] AC 1 (Re C), In that case, the child, C, who was 13, had a strong relationship with her brother M, who was 19. C’s mother refused to give her consent to C’s adoption on the ground that adoption might harm C’s relationship with M. Both the trial judge and this court upheld her refusal to consent, notwithstanding the prospective adopters’ acknowledgement of the relationship and their assurance that no impediment would be placed by them on its continuance.

The House of Lords reversed this court’s decision, and made an adoption order, attaching to it a condition under section 8(7) of the Children Act 1975 as to contact between C and M. The leading speech was given by Lord Ackner. After an exhaustive review of the authorities prior to 1988, he said the following: - (1989] AC 1 at 17-18-

Re C was, of course, decided prior to the passing of the Children Act 1989, and with the 1989 Act came the appreciation that contact orders post adoption could be made under section 8 of that Act, albeit that “leave” (permission from the court) was required before a birth parent could apply for contact once an adoption order was made. In accordance with Re C, however, such orders were perceived to be highly unusual. Two cases decided in 1995 (both called Re T (Adopted Children: Contact) [1995] 2 FLR 251 and 792 respectively) set the tone. In the first, the adopters had agreed to contact once a year. The child’s birth mother wanted contact two or three times a year, and sought an order to that effect so that her contact with the child would be secure. The judge made an order for contact once a year. The adopters appealed, and this court set aside the order. Butler-Sloss LJ (as she then was) said [1995] 2 FLR 251 at 256:-

In the second Re T a girl of 20 was given leave to apply for contact on the basis that the adoptive parents of her half-siblings had, without proffering an explanation, resiled from an agreement to provide annual reports on them. Once again, however, it was not envisaged that the applicant would achieve an order for face to face contact. As we read the case, the contact application was perceived as a vehicle to force the adopters to explain why they had not produced the reports.

Since 1995, the value of contact post adoption has been identified in a number of the cases, notably by Ward LJ in Re G (Adoption: Contact) [2002] EWCA 761, [2003] 1 FLR 270 and in the dissenting speech of Baroness Hale of Richmond in the Northern Ireland case of Down Lisburn Health and Social Services Trust v H [2006] UKHL 36. [2007] 1 FLR 12, both of which, of course, were decided without specific reference to the 2002 Act. However, as we understand it, the position has remained not only that contact orders post adoption are unusual, but, as was said in Re R (Adoption: Contact) [2005] EWCA Civ 1128 at paragraph 49; [2006] 1 FLR 373 at 385, that whilst contact post adoption was “more common” the jurisprudence was clear, and that “the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely unusual”.

All this, in our judgment, now falls to be revisited under section 26 and 27 of the 2002 Act, given in particular the terms of sections 1(4)(f), 1(6) and (7) and 46(6). In our judgment, the judge in the instant case was plainly right to make a contact order under section 26 of the 2002 Act, and in our judgment the question of contact between D and S, and between the children and their parents, should henceforth be a matter for the court, not for the local authority, or the local authority in agreement with prospective adopters.

We have already expressed both our surprise and dismay that D’s contact with her mother was stopped by the local authority unlawfully, and without the authority of an order from the court under section 34(4) of the 1989 Act. The making of the placement orders means, of course, that contact under the 1989 Act is no longer possible, but orders under sections 26 and 27 are not only possible but, in our judgment, necessary.

Furthermore, when the time comes for D and S to be finally placed, it will be the court which will have to make the necessary orders – either for adoption, or for revocation of the placement orders if the children are not to be adopted. At that point, in our judgment, as the facts of this case currently stand, it will be for the court, before making an adoption order, to decide, in accordance with section 46(6) of the 2002 Act, what ongoing contact D and S should have with each other – not for their prospective adopters to do so. The same principle will apply if the children are to be placed in long-term foster care.

The effect of the placement order is substantially to disempower D’s and S’s parents – see section 25(4) of the 2002 Act. In our judgment, as matters currently stand, the existence of the placement orders should not be an inhibition on the ability of SB in particular to apply to the court to determine questions of contact – and in particular the question of contact between D and S. Indeed, it seems to us highly likely that the placement of the children with adopters or foster carers who are unwilling, in particular, to facilitate contact between D and S would provide a proper basis for leave to be granted to SB under section 24(2) of the 2002 Act (leave to make an application to apply for an order to revoke the placement order) or for leave to apply to oppose the making of an adoption order under section 47(5) of the 2002 Act.

On the facts of this case, there is a universal recognition that the relationship between D and S needs to be preserved. It is on this basis that the local authority / adoption agency is seeking the placement of the children. In our judgment, this means that the question of contact between the two children is not a matter for agreement between the local authority / adoption agency and the adopters: it is a matter which, ultimately, is for the court. It is the court which will have to make adoption orders or orders revoking the placement orders, and in our judgment it is the court which has the responsibility to make orders for contact if they are required in the interests of the two children.

In our judgment, the making of placement orders in the instant case requires additional safeguards for the two children over and above the fact that the court has made contact orders under section 26 of the 2002 Act. We accordingly direct that all further applications in the case, including any application for either child to be adopted, should be listed before the same judge, and that all further applications in the case be reserved to him. Whilst we cannot, of course, fetter the future exercise of his discretion, which he must exercise as he thinks fit on the facts of the case, we are satisfied that he must retain control of the case, and that no final step should be taken in relation to either child without his imprimatur.

We repeat that our reason for taking this view is that the judge’s judgment is predicated on the proposition that the relationship between the two children is of fundamental importance, and that the relationship must be maintained, even if the children are placed in separate adoptive placements, or if one is adopted and the other fostered. In these circumstances it is not, in our judgment, a proper exercise of the judicial powers given to the court under the 2002 Act to leave contact between the children themselves, or between the children and their natural parents to the discretion of the local authority and / or the prospective carers of D and S, be they adoptive parents or foster carers. It is the court which must make the necessary decisions if contact between the siblings is in dispute, or if it is argued that it should cease for any reason.

We do not know if our views on contact on the facts of this particular case presage a more general sea change in post adoption contact overall. It seems to us, however, that the stakes in the present case are sufficiently high to make it appropriate for the court to retain control over the question of the children’s welfare throughout their respective lives under sections 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post adoption in accordance with section 26 of the 2002 Act, under section 8 of the 1989 Act. This is what Parliament has enacted. In section 46(6) of the 2002 Act Parliament has specifically directed the court to consider post adoption contact, and in section 26(5) Parliament has specifically envisaged an application for contact being heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned.

For all these reasons, albeit with the additional safeguards we have identified, this appeal will be dismissed.

This case plainly has a number of features which are similar to the appeal before us. The children in question, both boys, were aged seven and rising five, and were described by experienced social workers in the case as “among the most damaged and needy children that they had ever worked with”. In addition, the ultimate question was whether the children’s futures lay in adoptive placements, or in long-term foster care. There was no question of them returning to their parents.

In our judgment, however, the case is plainly distinguishable and is in no sense inconsistent with the dismissal of the appeal in the instant case. It is, we think, not insignificant that the father’s case at the hearing before the judge in Re T had been that the children should be reunified with their parents. It was, moreover, plainly the case in Re T that the children were nowhere near ready to be adopted: indeed, there were at the stage which S and D were at in 2005.

We are, however, authorised by Hughes LJ to say that there is a slip in paragraph [15] of the judgment, which the judge was unable to correct in time for the FCR report, but which will be corrected in any further report of the case. Having correctly pointed out that parental consent “has to be grappled with” at the placement order stage, the third sentence of paragraph [15] reads: “Although a subsequent application for an adoption order also requires either consent or dispensation with it, (section 47(2)) the parent is prevented by section 47(3) from opposing the adoption order except with the leave of the court.” Hughes LJ has asked us to point out that an adoption order can be made under section 47(4) (b) (ii) where the child has been placed for adoption under a placement order without any further dispensation with parental consent, and that a parent whose child is the subject of a placement order requires the court’s leave under section 47(5) to oppose the making of an adoption order in these circumstances.

We are grateful to Hughes LJ for enabling us to point out the error in paragraph [15].