In a judgment handed down on 14^th May 2013 a highly experienced family judge, Her Honour Judge Kushner QC, described the case that she was considering as “one of the most difficult cases I have heard”. Although there was a range of issues in the case relating to the five children before the court, the focus of the judge’s anxiety was upon the narrow, but important, choice to be made in placing the two youngest boys, now aged five and three, in either a long term foster placement or for adoption. In the event the judge concluded that adoption was the preferred course but, and this is the key point, only if the adoptive placement met each of seven specific requirements. If those requirements could not be met, the judge expressly held that adoption was not in the interests of these children and should not take place. On that express basis the judge made a placement for adoption order under Adoption and Children Act 2002 (“ACA 2002”), s 21.

With the permission of Lady Justice Macur, the local authority now appeal against the placement order insofar as it may include the conditions stipulated by the judge governing the choice of adoptive placement. The mother, who is content with the judge’s order provided that the stipulations as to placement are adhered to, has, sensibly, issued a cross-appeal seeking the discharge of the placement order if the local authority’s appeal is successful and the judicial stipulations consequently fall away.

Care proceedings involving all five of the children born to this family, all boys now aged between twelve and three years, commenced in June 2011. The local authority relied upon a long history of alcohol and drug abuse, chaotic parenting, children who were seen to be out of control in the home and inadequate hygiene. By July 2012 the parents conceded that none of the five children would be returning to their care. The final hearing took place in January and February 2013 and by the last day of that hearing on 6^th February the parents had accepted that care orders would be made and accepted the care plan for the older three boys, which was that they be placed with long term foster parents. The principal issue therefore related to the form of placement to be chosen for the youngest two, who are M, born 27^th November 2007, and K born 18^th July 2010.

A child psychologist, Mrs Buxton, had been instructed to advise the court as to the best outcome for these children. Her analysis, which came to be shared by the Children’s Guardian and, in due course, the judge, was that the placement choices were complicated by the significant relationships existing between the five children. Firstly, M and K were very close to each other. The judge summarised the evidence at paragraph 6.23 of her judgment thus:

Secondly, M was particularly attached to his older three siblings and his interests required continuing contact with his three older brothers irrespective of the character of his long term placement.

Thirdly, whilst, normally, given K’s age, K would be a prime candidate for adoption, the need for him to be placed together with M and the need for M to have continuing contact to the older boys brought into question whether adoption was indeed the right option for K.

Fourthly, M was prone to exhibit disturbed and difficult behaviour which made the task of caring for him particularly challenging.

These various factors led Mrs Buxton to put forward what became described as a “shopping list” of requirements concerning the future placement for M and K. The judge summarised matters at paragraphs 6.75 and 6.76 in these terms:

The judge was not assisted in her task by the social work evidence. M’s challenging behaviour and the difficulties that he plainly had with relationships and attachment were significant aspects of this case. However, as the judge found, the statutory form designed to describe the children to potential carers was deliberately completed by the social worker so as to omit this important information. The social worker told the judge that had the information been included “it would have seriously narrowed the number of potential adopters in the initial trawl”. The social worker explained that the full situation would, however, have been relayed to the link worker for any potential adopters at a later stage, once they were seriously considering taking the children on. The judge expressed concern that the full information would not even have been transmitted at that later stage. At paragraph 6.97 the judge stated that she saw no reason for confidence that the social worker would put forward the full gamut of possible problems with M and K, in the same way that she had done at the earlier professionals’ meeting. The judge went on to express the following conclusion:

Having summarised her various findings in relation to the attributes and needs of these two boys, which are not challenged for the purposes of this appeal, the judge set out to describe the type of placement that they needed. Paragraphs 7.13 to paragraph 7.16 are of particular note:

The key passages underpinning the point that gives rise to this appeal are at paragraph 7.18 and 7.30 and 7.31. At paragraph 7.18 the judge said:

Following the conclusion of the oral hearing on 6^th February 2013, the judge issued the text of her judgment on 14^th May 2013. It is a very substantial document and indicates a great deal of judicial care and thought as to the future well being of these two young children. Thereafter, the question arose between the parties as to what form any care order or placement for adoption order should take. Discussions failed to achieve agreement and the matter was set down for further hearing before the judge on 1^st August 2013. Thereafter, the parties agreed the terms of the order, in the light of directions given by the judge, on 18^th August 2013.

The timetable that I have described cannot pass without comment. Some six months elapsed between the conclusion of the oral hearing and the issuing of the resulting court orders. More particularly, the period between the judgment in May and the issuing of the court orders in August was itself some twelve weeks. The proceedings had started two years earlier in June 2011 and the purpose of the proceedings was to determine the long term placement of all five children, but in particular M and K. At the start of the court process K was not even one year old. He is now three and a quarter. Whilst I do not underestimate the difficulties involved in assessing the various needs of these two young children and then determining how best they can be met, a timescale of the proportions that I have described cannot on any view be said to have been in the interests of either boy, particularly young K.

As I have indicated, the focus of this appeal is on whether or not the judge imposed conditions in some form on the care orders and the placement for adoption orders and, if so, whether those conditions should now be set aside. It is therefore necessary to set out the relevant parts of those court orders. The structure of both orders is in similar terms and commences with a section headed “It is recorded that”. Within that section paragraphs 2 and 3 read as follows:

two in number;

energetic;

free from attachment difficulties of their own;

experienced carers;

there must be no other children within the home

On that basis the judge made the care orders and placement for adoption orders that had been sought. In the placement order, pursuant to ACA 2002, s 26(2)(b) the court made a contact order providing for M and K to have contact “no less than two occasions each year” with their three brothers. Finally, the court orders provided that any future applications in relation to any of the children are to be reserved to HHJ Kushner if she is available.

Mr Karl Rowley QC, for the local authority advances four grounds of appeal which are in summary:

The judge was wrong in law in purporting to define an inflexible, indivisible list of attributes of prospective adopters for M and K in such a manner which interferes with the discretion of the local authority in its role as adoption agency, and falls outside the definition of roles, as between the court and the local authority, in such a case.

The judge was wrong in law to record that the orders were made “on the basis” that the attributes set out would be adhered to, there being no jurisdiction for the court to place conditions upon a local authority when granting a placement for adoption order.

The judge was wrong in concluding that ongoing direct sibling contact was a condition precedent for adoption and therefore wrong to make a contact order under ACA 2002, s 26.

The judge was wrong to reserve any future applications to herself as the effect of such a direction was to ensure ongoing judicial control of and supervision over the local authority’s decision making process.

The local authority does not dissent from any of the particular attributes that appear in Mrs Buxton’s “shopping list”. The problem they perceive arises from the judge’s insistence that this list is an indivisible whole which is to be applied in a monolithic and inflexible manner. The authority has little confidence that they could find adopters that would meet each and every one of the attributes, including ongoing contact, that have been specified. They perceive that any attempt to progress an adoptive placement with prospective adopters who might be seen by the parents to fall short of the stipulated requirements would immediately trigger either judicial review proceedings or an application, reserved to HHJ Kushner, to revoke the placement orders.

In terms of the law Mr Rowley relies upon ACA 2002, s 21 (1) which provides that:

The 2002 Act makes no provision for the court to apply conditions to a placement for adoption order. Mr Rowley submits that the scheme of the Act does not provide for further involvement by the court in the process of matching a particular child to particular adopters. That process is undertaken by the local authority acting upon the advice and recommendation of its adoption panel established under the Adoption Agency Regulations 2005. The matching process is tightly regulated, in particular by regulations 21 to 30 of the AAR 2005 which are supported by statutory guidance. No element of that process involves the court.

Mr Rowley gains some support for his case from the decision of this court in Re A (A Child) (Adoption) [2007] EWCA Civ 1383 where Wilson LJ, as he then was, stated the following:

Mr Rowley further submits that the division of responsibility as between the court and the local authority under a placement order is analogous to that which applies when a final care order is made under CA 1989, s 31. That topic was fully canvassed before the House of Lords in the “Starred Care Plan” case Re: S; Re: W (Care Order: Care Plan) [2002] UKHL 10; [2002] 2 AC 291. In that case the Court of Appeal had endorsed the introduction of a process under which essential milestones of a child’s care plan were identified and “starred” on the basis that if a starred milestone was not achieved this would trigger a right either for the child’s Guardian or the local authority to apply in family proceedings for further directions. On appeal the House of Lords held that it was a cardinal principle of the CA 1989 that the courts were not empowered to intervene in the way local authorities discharged their parental responsibilities under final care orders. The starring system was held to be inconsistent with that important element in the scheme of the CA 1989. In the leading speech of Lord Nicholls the basic premise is clearly stated in paragraph 25:

Finally, at paragraph 28, Lord Nicholls says:

Mr Rowley argues that precisely the same structural boundary exists between the role of the court and that of a local authority adoption agency under a placement for adoption order.

The local authority accepts that there is but one exception to the general position on the separation of responsibilities and it relates to contact. Under ACA 2002, s 26 the court has power to make a contact order during the currency of a placement for adoption order. The local authority’s appeal against the contact order in this case is on the basis that the judge elevated a desirable outcome, namely that there should be continuing contact, into a condition precedent by making it the subject of a contact order.

For the mother, Miss Frances Heaton QC opposes the local authority’s appeal. In doing so, Miss Heaton accepts the legal context relied upon by Mr Rowley, but submits that all the judge was seeking to do in this case was to be transparent as to the basis for the decision that had been reached and has done no more than set out the children’s needs and the quality of care that they will require. She characterises the judge’s requirements as being no more than an invitation to the local authority to consider embracing a search which incorporates the listed specific features.

In her oral submission, however, Miss Heaton confirmed that if the parents were unhappy with the choice of prospective adopters made by the local authority they would either apply to revoke the placement order or for judicial review, relying upon the requirements for placement that have been identified by the judge.

Mr Jeremy Weston QC, for the Children’s Guardian, opposes the appeal. In doing so he reminds the court that the Guardian’s stated position at the final hearing was in favour of a long-term foster placement for the two youngest boys, she does not however seek to challenge the placement order, provided that the “shopping list” of attributes, which she thoroughly supports, remains as part of the structure of the court order as divined by the judge. Mr Weston submits that the judge was entirely right to identify the required attributes in the clearest terms, and he describes the course that the judge has adopted as unremarkable and not open to challenge. In making that submission Mr Weston accepts that the court does not have power to attach “conditions” to a care order, however, he stresses that the shopping list of requirements is no more than “a recording” in the court order. In the event that the structure put in place by the judge does not survive this appeal, the Guardian supports the mother’s cross appeal.

In reply Mr Rowley stressed that there were practical and procedural consequences for the court if the placement for adoption order were set aside, yet the local authority were still required to undertake a search for potential adopters. There may be difficulty in advertising the availability of the children and there would certainly be difficulties in engaging the interest of prospective adopters in children who have yet to be cleared for placement for adoption by a court order.

All parties accept Mr Rowley’s description of the statutory boundary that exists between the role of a court and that of a local authority upon the making of an order authorising placement for adoption under ACA 2002, s 21. The statutory structure established in relation to placement for adoption orders is, in this respect, on all fours with that which applies to final care orders under CA 1989, s 31. The House of Lords decision, and in particular Lord Nichols description of the inability of a court to impose conditions upon a final care order, in Re: S; Re: W (Care Order: Care Plan), applies in like manner with respect to an order under ACA 2002, s 21 authorising placement for adoption. No party before this court sought to argue to the contrary and there cannot be any ground for drawing a distinction between the two statutory schemes in this respect.

In the absence of any express statutory provision to the contrary, Parliament must be taken to have intended that the ‘cardinal principle’ identified in Re: S; Re: W would apply to the making of a placement for adoption order. The wording of the key provision in ACA 2002, s 21(1) could not be more plain:

When a placement for adoption order is made, the family court retains only limited powers arising from the court’s jurisdiction to:

vary or revoke the placement order [ACA 2002, ss 23 and 24];

make orders for contact [ACA 2002, s 26].

In the present case the judge was clearly driven to take the unusual step of setting out, in express terms, the attributes that she considered to be essential if adoption were to be beneficial for each of these two boys. The judge was obviously anxious that the past performance of the local authority indicated that, if left to its own devices, the necessary mix of attributes might be watered down or compromised for the sake of achieving an adoptive placement. As a child focussed and well motivated action, the judge’s stance cannot be faulted. The question is whether her action was legally permissible, or whether it crossed the boundary that is so clearly drawn between the role of the court and that of a local authority under a placement for adoption order.

The debate before this court has focussed upon what label might best describe the judge’s actions in seeking to maintain the local authority’s search for adopters to those who meet the attributes on the ‘shopping list’. The local authority categorise the judge’s stipulations as ‘conditions’; Miss Heaton describes them as a transparent ‘invitation’ to the local authority; and Mr Weston says that they are no more than a ‘recording’ in the court order of the shopping list of ‘requirements’. To my mind these proffered labels are matters of semantics. There is no magic in whether or not the judge’s requirements are ‘conditions’; the word ‘condition’ has no legal status in this context. What matters is the substance of the structure that the judge sought to deploy in order to achieve what she saw as necessary to meet the needs of these children. In terms of the substance of that structure I am in no doubt that the judge’s order in this case, together with the stipulations in her judgment, fall well beyond the line that divides the role of the court and the role of a local authority under a placement for adoption order. That conclusion is established by the following aspects of the judgment and court order:

the judge’s conclusions at paragraphs 7.13-7.16 and 7.18 (set out at paragraphs 10 and 11 above) hold that only an adoptive placement that meets each of the ‘shopping list’ requirements will be in the welfare interests of each of the boys;

the conclusion at paragraph 7.30 in terms that ‘if the right adopters cannot be found, adoption is not in the interests of these children and should not take place’;

in ‘recording’ number 2 in the court order the ‘shopping list’ attributes were described as a ‘pre-requisite’ to the placement which ‘must’ be met;

recording number 3 states that the care plans are approved and the placement orders granted ‘on the basis that the list of attributes set out above is adhered to by the local authority’.

The judge’s decision to reserve all future hearings to herself is not, looked at on its own, a matter of concern. On the contrary, judges are encouraged to ensure judicial continuity in children cases if at all possible. However, when set against the other matters which, as I have held, were beyond the judge’s jurisdiction, the decision to reserve the case only goes to add to the establishment of a role for the judge in this case which amounted to overseeing the implementation of the care plan in a manner which is impermissible.

The matters raised in this appeal are not academic. Miss Heaton has confirmed that if the mother were not satisfied with prospective adopters chosen by the local authority, she would seek to bring the matter back to court by applying for leave to revoke the placement orders (under ACA 2002, s 24) and/or issuing judicial review proceedings. Indeed, this court was told that the mother has already issued an application under s 24(2) which is now due to come before HHJ Kushner for determination.

In all the circumstances, the local authority has made good its appeal and, if the placement orders are to survive this appeal hearing, I would allow the appeal, strike out recordings 2 and 3 from the court order and declare, through this judgment, that the placement orders are to stand as unencumbered orders in the standard terms of ACA 2002, s 21.

On more than one occasion during her submissions, Miss Heaton gave voice to a question that is likely to have been at the forefront of HHJ Kushner’s mind as she contemplated how best to proceed within the formal structure of ACA 2002 to produce an outcome which met the needs of these two boys as she so plainly saw them. That question was ‘what is a judge to do?’ in circumstances where she is satisfied that the welfare of a child only requires adoption if an adoptive placement can be found which meets a number of specific attributes, but, if those attributes are not present, the child’s welfare would not be best served by adoption. The judge chose a course which, as I have held, was not, as a matter of jurisdiction, open to the court. My conclusion therefore begs a repetition of the question, ‘what, then, is a judge to do?’.

The answer to the question is, in my view, plain and straightforward. It is to be found in ACA 2002, s 52(1):

The judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 set out in clear terms how the word ‘requires’ in s 52(1) is to be applied. The passage in Re P is well known and there is no need to repeat it here. The question, after applying the life-long focus of the welfare provisions in ACA 2002, s 1, is whether what is ‘required’ is adoption, as opposed to something short of adoption. The interpretation of s 52 in Re P was expressly endorsed by the Supreme Court in Re B (A Child) [2013] UKSC 33 and given general application in the judgments of the court where the need for a proportionate justification for adoption was underlined by the use of phrases such as “nothing else will do”, “a very extreme thing” and “a last resort”.

As I have already held, it was not open to the court to seek to limit or exert direct influence over the choice of prospective adopters under a placement for adoption order. On that basis and on the express findings of the judge it was simply not open to the court in the present case to go on to conclude that the welfare of either of these two boys required adoption as opposed to something short of adoption; it was not possible to hold that ‘nothing else will do’. The judge was expressly contemplating that long-term fostering would ‘do’ and, indeed, would only be displaced as the better option for the boys if a ‘shopping list’ compliant adoptive home could be found. In the absence of a power to influence and control the local authority’s role under a placement for adoption order, the test in ACA 2002, s 52(1), in so far as it relates to a placement order, must be read in the light of s 21(1) with the welfare requirement being evaluated on the basis that the placement is to be ‘with any prospective adopters who may be chosen by the authority’.

A court may only make a placement for adoption order if, under ACA 2002, s 21(3), it is satisfied either that each parent or guardian is consenting, or that the parent or guardian’s consent to the child being placed for adoption should be dispensed with under the terms of ACA 2002, s 1 and s 52. Against the test in ACA 2002, s 52(1) and on the findings of the judge, the ground for dispensing with parental consent in this case was simply not established and as a result the court did not have jurisdiction to make placement for adoption orders.

I would therefore hold that the cross appeal of the mother succeeds and that the placement for adoption orders made in this case must be set aside with the result that the two boys will now simply be subject to final care orders.

The absence of placement for adoption orders will no doubt render more difficult the task of finding prospective adopters for these two children, but the local authority remain able, under the care order, to continue to search for adopters.

If prospective adopters are identified, then it will be open to the local authority to make a fresh application to the court for an order authorising placement for adoption under ACA 2002, s 21. In determining that application the court will then be in a position of matching the welfare requirements of the boys, as they are then seen to be, against the attributes of the identified adopters. In the unusual circumstances of this case, where only a bespoke adoptive placement is currently seen to be in the children’s interests, such a procedure would seem not only to be legally required, but also to be appropriate.

The local authority’s appeal against the making of a contact order under ACA 2002, s 26 falls away with the setting aside of the placement for adoption orders and does not therefore call for separate determination. Had a determination, however, been required I would not have allowed the local authority appeal on this point. As has already been recorded, the court does have jurisdiction to direct contact during the currency of a placement order. Given the judge’s conclusions, she was entirely acting within her jurisdiction in holding that it was necessary to establish that the children’s welfare required continuing inter-sibling contact.

For the reasons that I have given, I would:

allow the local authority appeal by striking out ‘recording’ 2 and 3 from the placement for adoption orders;

allow the mother’s cross appeal and set aside the placement for adoption orders.

For the avoidance of doubt, the result of the appeal, if my Lords are in agreement, is that the full care orders made by the judge remain in force. The order for contact made under ACA 2002, s 26 automatically falls away on the setting aside of the placement orders and needs to be replaced by a contact order in the same terms under CA 1989, s 34.

I agree.

I also agree that these proceedings should be resolved in the manner suggested, and for the reasons given, by McFarlane LJ.