Re CV (A Child) (Placement Order)

This is an appeal against the placement order made under the Adoption and Children Act 2002 in respect of a three-year-old girl, C. The appeal is brought by the child’s mother, supported by her father, and opposed by the local authority and the guardian.

The central issue is whether the judge correctly identified the realistic options for the child’s future care, properly analysed the advantages and disadvantages of each option, and sufficiently explained her reasons in the ex tempore judgment delivered at the conclusion of the hearing. For the past two years, C, who requires a particular level of care as a result of a number of medical conditions, has been living in the care of specialist foster carers. The appellant argues that the judge failed to give proper consideration to the option of C remaining with those carers in long-term foster care.

The approach to be followed by judges in making decisions in care proceedings is clearly established by case law, in particular the decision of the Supreme Court in Re B (Care Proceedings: Appeal) [2013] UKSC 13 [2013] 2 FLR 1075 and the subsequent series of decisions of this Court of which Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146 are the most frequently cited.

In Re G, McFarlane LJ said:

Very recently, this approach was endorsed by the Supreme Court in Re H-W (Children), Re H-W (Children) (No. 2) [2022] UKSC 17 in which Dame Siobhan Keegan, with whom the other members of the Court agreed, observed (at paragraph 47):

In practical terms, as this Court stated in Re B-S, this means that it is incumbent on (a) the local authority that applies for care and placement orders, (b) the children’s guardian entrusted with representing the children in the proceedings, and (c) the court to carry out a robust and rigorous analysis of the advantages and the disadvantages of all realistic options for the child and, in the case of the court, set out that analysis and its ultimate decisions in a reasoned judgment.

There is a long and complex background to this appeal, but the relevant matters can be summarised briefly as follows. C, born in January 2019, is the youngest of four children of the mother and father, who are not married but have been in a relationship for over 25 years, though living in separate households. Her three older siblings were all subject of care proceedings in which they were removed from their parents’ care and placed with family members, although the eldest child, now aged 18, has now returned home.

C suffers from a range of serious medical conditions, in particular hypopituitarism and central incisor syndrome with piriform stenosis, with a number of associated symptoms including development delay, dysmorphic features and heart abnormalities. As a result of her condition, she has to take regular medication, including hydrocortisone every six hours and a number of other drugs taken daily under a regime which must be followed precisely. In case of medical emergencies, carers must follow an adrenal crisis management plan. Her condition makes her extremely vulnerable to stress.

C spent the first 16 months of her life in a succession of hospitals. During this period, her mother was with her throughout, save for four days when her father was present. In March 2020, in anticipation of her discharge from hospital, the local authority started care proceedings, asserting that C was likely to suffer significant harm in her parents’ care. They raised concerns about the mother’s lack of control of her diabetes, the parents’ volatile relationship and history of substance abuse, and the mother’s challenging behaviour towards professionals. Following the making of an interim care order, C was placed with specialist agency foster parents, Mr and Mrs D, with whom she has remained for the past 15 months. Mr D is a fireman, Mrs D a nurse. They both work part-time so that one of them is available to care for C at all times. They have undergone training to enable them to meet C’s complex needs. Mrs D’s parents are also trained to step in as short-term carers if required. But for their obligations to care for C, both Mr and Mrs D would be able to extend their working hours. As a result, their earnings are significantly lower than they would be if she were not living with them. At the moment, as specialist agency carers, they receive a fostering fee and allowance in the sum of £2,730 per month, together with disability living allowance at £358. The fostering fee and allowance paid to these agency foster carers are significantly larger than the sums that would normally be paid to foster carers engaged by the local authority or to adopters.

During the proceedings, C’s maternal aunts came forward offering to look after her, and were given a positive special guardianship assessment. Mr and Mrs D also applied to be considered as special guardians and they too received a positive assessment. In June 2021, a hearing took place before HH Judge Gargan, who has conducted all substantive hearings in the proceedings, at which the court concluded that a placement of C with her parents was not a realistic option. In July 2021, a supplemental report reversed the positive assessment of the maternal aunts as special guardians. In October 2021, the local authority informed the court that Mr and Mrs D had withdrawn from seeking a special guardianship order as they were unable to reach agreement on the level of financial support. The local authority therefore put forward an amended care plan proposing that C be adopted, and filed an application for a placement order.

At an issues resolution hearing in November 2021, the local authority was directed to file a further statement addressing the option of C being rehabilitated with her mother and, alternatively, remaining with Mr and Mrs D in long-term foster care. The statement was filed on 26 November. It is unnecessary for the purposes of this appeal to consider what was said about the mother, save to record that the local authority continued to recommend that C should not be placed in her care. So far as Mr and Mrs D were concerned, the statement set out the arguments identified by the local authority for and against a long-term foster placement with the Ds. The arguments in favour were said to include: (1) that C had been cared for by the Ds for a significant period of time and was settled in the placement; (2) that she would not need to transition to another placement which was likely to be stressful for her; and (3) that the local authority would continue to provide support around contact with the birth family. The arguments against were said to be: (1) that C would not be cared for within her birth family; (2) that long-term foster care did not offer permanency; (3) that Mr and Mrs D could end the placement at any time, a risk which was of greater consequence here because of the potential for ongoing disruption to the placement from the mother; and (4) that C would remain a looked after child and subject to the intrusion and stigma that attached to a child in care. Balancing those arguments, the local authority had concluded that this option was not in C’s best interests.

The guardian’s final report, filed in December 2021, considered the various options, including C remaining with Mr and Mrs D as long-term foster carers. Within her child impact analysis, she wrote:

The guardian then identified factors for and against, on the one hand, long-term fostering with Mr and Mrs D and, on the other, placing C with adoptive carers. She then set out a “permanence analysis” by reference to the checklist in s.1(4) of the 2002 Act. She concluded:

Shortly before the final hearing, the local authority social worker filed a further statement dated 18 February 2022, in which she said that

For the final hearing starting on 28 February 2022, the parties filed case summaries or position statements summarising their respective cases. The local authority sought care and placement orders. The mother proposed that C be placed in her care or, if that was not possible, that she remain with the Ds in long-term foster care. The father simply supported the mother’s case. The maternal aunts, who had withdrawn their application for a special guardianship order but remained parties to the proceedings, initially supported the local authority care plan but, according to the order made at the end of the hearing, “upon hearing evidence changed their position and supported a plan of long-term foster care with her current carers.”

In the position statement filed on behalf of the guardian, it was recorded that she “despairs at the thought of this placement breaking down for financial reasons and inflexibility on both sides”. It continued:

At the hearing oral evidence was given by the local authority family finder, the social worker, the mother, father and guardian. We were given a note of the oral evidence agreed by counsel, though not approved by the judge. Much of the focus of the hearing was on the option of C remaining in long-term foster care with Mr and Mrs D. The social worker agreed that they were a “viable option”. The mother’s counsel asked:

In her evidence, the guardian painted a very positive picture of C’s life and care in the Ds’ home where she is “the centre of the family”. The guardian expressed frustration, however, that Mr and Mrs D had limited knowledge about the level of financial support available, and in particular that they did not understand that it was not possible for the local authority to waive the requirement for periodic reviews of the level of support. She described what they were asking for as “unrealistic”. But she also said:

After oral submissions, the judge delivered an ex tempore judgment. She summarised C’s difficulties, describing her as “one of the most vulnerable children to come before this Court”. She recorded the progress C had made in the care of Mr and Mrs D and the quality of the care they had provided, but noted that they had not been able to reach any form of agreement with the local authority on financial support, whether as special guardians or long-term foster carers, that although they had been approved as long-term foster carers they had not been matched with C, and although they had indicated a wish to adopt C, they had not been approved as adopters and that “the harsh reality is unless there is some thinking outside the box that is likely to falter on the need to have sufficient funds.”

At paragraphs 24 to 25, the judge made a striking observation:

The judge then made a brief reference to the law:

She summarised some of the evidence she had heard from the family finder about the prospects of finding appropriate adopters. At paragraph 55, she said:

The judge then summarised the evidence given by the social worker, mother, father and guardian. She characterised the guardian’s view in these terms:

Having summarised the evidence, the judge then set out her final analysis, saying:

The judge therefore made care and placement orders. An application on behalf of the mother for permission to appeal was refused.

On 13 April 2022, the mother filed a notice of appeal against the placement order. She no longer sought an outcome placing C in her care. Instead, she asked this Court “to invite the local authority to amend its care plan and to endorse a care plan of long-term foster care or alternatively remit the matter to the lower court”. In her grounds of appeal she asserted that the judge’s decision was wrong in five respects:

On 23 May 2022, Peter Jackson LJ granted permission to appeal, observing:

At the outset of the hearing of the appeal, I asked counsel to clarify what had been the “realistic options” for C’s future care which had been considered during the hearing before the judge. All counsel agreed that there had been three such options but they did not agree precisely as to what those options were. Ms Fairclough for the appellant mother, supported by Ms Davies for the father, said that the realistic options were (1) rehabilitation with mother, (2) adoption, and (3) long-term foster care with Mr and Mrs D. Ms Manassi for the local authority, supported by Ms Brooks for the guardian, agreed with the first and second option but not the third. It was their view that the third realistic option considered by the court was long-term foster care generally and not with Mr and Mrs D specifically. On behalf of the local authority, Ms Manassi very fairly conceded that, if Ms Fairclough for the mother was right in saying that placement with Mr and Mrs D in long term foster care was a realistic option open to the court, it was arguable that the judge’s analysis of the option was deficient. She submitted, however, that the judge had excluded long term foster care with the Ds as a realistic option because it was not open to the local authority to guarantee that the placement would continue and not open to the court to insist that it did. She accepted that the judge did not identify the realistic options in clear terms but submitted that it was “implicit” from paragraph 99 of the judgment set out at [23] above.

I posed the question to counsel because it was not immediately clear to me reading the judgment how the option of C remaining with Mr and Mrs D as long-term foster carers had been treated by the court. Having re-read the judgment in the light of submissions made at the hearing, I now think the judge’s approach to and conclusions about this option were as follows.

It was clearly the judge’s view that it is in C’s interests to remain with Mr and Mrs D. (“If … I had a magic wand, I would be waving it incredibly hard to have this little girl stay where she is.”). That was also the guardian’s view (“If we could keep her with the Ds and keep contact with everyone that is best …. That is what I believe would be right for her.”)

But Mr and Mrs D and the local authority had not reached an agreement about the level of financial support that would be provided to them were C remain in their care whether as long-term foster carers, special guardians or adopters. At that point, Mr and Mrs D were apparently saying that without financial guarantees they could not commit to caring for C in the long term. Furthermore, the local authority would not say whether the Ds would be treated as front-runners for adoption. In those circumstances, even though the social worker had described the option of C staying with them was “viable”, the judge seems to have concluded that long-term fostering with the Ds was not a realistic option at that stage.

At paragraph 24 (quoted at [20] above), the judge identified some of the factors in favour of a continued placement with Mr and Mrs D, saying that she would “come on to” the reasons why C should stay in their care later in the judgment. In fact, she did not do so. She never analysed the advantages and disadvantages of the placement continuing, as she would have had to do if she regarded it as a realistic option. Instead, having concluded that the child could not be rehabilitated with the mother, the judge seems to have concluded that the realistic options were either (a) long-term foster care with different carers or (b) adoption with carers who may or may not be Mr and Mrs D.

The judge added, however, that, if no adoptive placement could be identified, the local authority should “move heaven and earth to keep her where she is”. In saying that, she seems to have thought that the possibility that C might stay with Mr and Mrs D was a realistic option as a contingency plan if no adoptive placement could be found within the timeframe proposed by the guardian and that the local authority should explore ways in which that might be achieved. If keeping C in her current placement was, in the guardian’s phrase “right for her" and long-term fostering with the Ds was an option which was worth pursuing as a contingency plan, it is difficult to see why it was not a realistic option to be evaluated alongside adoption as the principal plan for the child’s future.

In the circumstances, it is unsurprising that counsel at the appeal hearing were not in agreement as to whether or not the court had treated the possibility of long-term foster care with Mr and Mrs D as a realistic option to be evaluated alongside the other options. Although she did identify some advantages and disadvantages of the various options at various points in the judgment, the judge did not in my view carry out the balancing exercise with the clarity and particularity required by the decisions of this court in Re G and Re B-S and now of the Supreme Court in Re H-W. The importance of a clear and reasoned judgment is to record and demonstrate that the court has carried out the evaluation of the realistic options with the rigour required by the case law. Given the lifelong consequences of decisions at the end of care proceedings, it is essential that the evaluation of the realistic options is fully explained in a judgment that may be read and understood by everyone involved, including at a later date the child herself.

In her first two grounds of appeal, Ms Fairclough asserted that the judge wrongly concluded that nothing else but adoption would meet the child’s needs when (1) she did not have sufficient evidence to conclude that long-term foster care with Mr and Mrs D was not a realistic option and (2) there was further information which could and should have been obtained before making that decision. In response, Ms Manassi submitted that the court heard compelling evidence as to why long-term foster care was not appropriate for child of this age even with the current carers and that adoption provides a quality of the different sort of permanence. The local authority had exhausted all avenues of communication with Mr and Mrs D in an effort to persuade them to accept regular reviews of support. Such reviews might have led to the identification of support packages under various legal frameworks which, as she put it in her skeleton argument, “might have been realistic placement options had it not been for that intransigence”. The local authority was unable to agree paying financial payments at the current agency linked rate without ongoing reviews and, at the date of the hearing, Mr and Mrs D had been clear that they would not consider putting themselves forward for matching as long-term foster carers in those circumstances.

In her skeleton argument for the appeal, however, Ms Manassi provided further information about developments that have taken place since the hearing before the judge, including information about the search for prospective adopters. In addition, she stated that the family finding team had “received an email from the Ds’ social worker on 17 June 2022 expressing that the Ds were willing to show flexibility and wished to be considered as her adopters and that the family finding team are checking package options with their head of service”.

This information about possible development in Mr and Mrs D’s position plainly satisfied the Ladd v Marshall criteria and we therefore asked to see the email. It read as follows:

On seeing this email, we asked the local authority to enquire of Mr and Mrs D whether they were now prepared to show the same degree of flexibility in respect of long-term foster care. After the short adjournment, we were shown the following email sent direct by Mrs D:

The terms of the email sent by the Ds’ support worker was considerably more expansive than the information set out in Ms Manassi’s skeleton argument. That email, and the supplementary email sent by Mrs D, added weight to the arguments raised in Ms Fairclough’s first two grounds of appeal, that the judge did not have sufficient evidence to conclude that long-term foster care with Mr and Mrs D was not a realistic option and that was there was further information which could and should have before making that decision. To my mind, these latest emails give rise to real hope that the outcome which the judge plainly believed to be the best option for C may now be within reach.

To sum up, there was strong evidence to support the view that it was in the interests of C’s welfare to remain with Mr and Mrs D. She is settled there, receiving high quality care. She has formed a close relationship with her carers and members of their family. It is the only home she has ever known. She has very complex and demanding medical and therapeutic needs which Mr and Mrs D are able to meet. She is highly vulnerable to suffering a serious, possibly life-threatening, adverse reaction to stress from disruption to her routine. She is expecting to go to a local school in the vicinity of the Ds’ house. Although there have been difficulties with contact, remaining with Mr and Mrs D would allow her to retain an element of direct contact with her birth family. In my view, long-term foster care was an option which should have been considered and evaluated alongside the other options in accordance with case law, as part of “a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.” For the reasons set out above, however, the judge’s analysis of the realistic options for C’s future care was flawed. She failed to deal clearly with the option of long-term foster care with the Ds, to the extent that at the appeal hearing the parties were unable to agree whether it had been treated as a realistic option or not.

The appellant’s argument in the first two grounds of appeal that the judge did not have sufficient evidence that long term foster care with the current carers was not a realistic option and that there was further information which should have been obtained before the decision was made has been strongly reinforced by the recent emails. It seems clear that Mr and Mrs D are no longer saying that they cannot continue to care for C unless they receive support at the current level. Even if the option of long-term foster care with the Ds was not a realistic option at the time of the hearing, it has unquestionably become so now.

For these reasons, I would allow the appeal on grounds 1 and 2 and set aside the placement order. In the circumstances it is unnecessary to consider the remaining grounds. I am unpersuaded that there is any need for further guidance as suggested by the appellant, and I would certainly not be prepared to give such guidance after a hearing in which the range of arguments was limited.

If my Lady and my Lord agree with my conclusion, the application for a placement order must be reheard. At that hearing, the court will have to consider all the realistic options for C’s future. Although I have expressed the view on the basis of the evidence now available that long-term foster care with Mr and Mrs D is a realistic option, I am expressing no view as to which option should ultimately preferred. There were other options before the judge and further realistic options may emerge. For example, as anticipated in the recent emails, Mr and Mrs D may decide to proceed with their own adoption application. Although we were not addressed on this at the hearing, it seems to me that they could initiate this process by serving notice on the local authority under s.44(3) of the 2002 Act. There will be arguments for and against the various options which the judge conducting the rehearing will have to evaluate.

Although I have expressed some criticism of the analysis in the judgment, it is clear from the judgment and the agreed note of evidence that the judge approached this difficult task conscientiously. She is an experienced family court judge with a deep understanding of the case. Nevertheless, on balance I have reached the conclusion that the rehearing should be conducted by a different judge who will have the opportunity to conduct a completely fresh evaluation of the realistic options. I therefore propose that the matter be remitted to Newton J, as Family Division Liaison Judge for the South Eastern Circuit, to allocate the rehearing to another circuit judge.

I agree.

I also agree.