N (Refusal of Placement Order)

This is an appeal by a local authority against a decision to refuse an application for a placement order under s.21 of the Adoption and Children Act 2002 in respect of a child, hereafter called “N”, who is now aged rising three.

At the end of the hearing, we informed the parties that the appeal would be dismissed for reasons to be given at a later date. This judgment sets out my reasons for agreeing with that decision.

The proceedings concern two children, N and her older half-sister, G, who is now aged 8. The girls share the same mother but have different fathers. The mother has a disturbed, and disturbing, background. She was removed into care at the age of 2 and initially adopted aged 6. After that placement broke down, she was adopted again but then subjected to physical and emotional abuse at the hands of her second adoptive mother. Unsurprisingly, these traumatic experiences have left her even more opposed to the prospect of adoption for any of her own children. In addition to the two children who were the subject of these proceedings, she has three older boys by a previous relationship, who have lived with their father since 2014, and she has recently given birth to another baby.

The relationship between the mother and G’s father broke up when G was a baby. Thereafter, G lived with her mother and had occasional contact with the father who had moved away to another part of the country. In 2018, the mother started a relationship with N’s father which became violent and abusive soon after N was born. The local authority’s children’s services became involved with the family because of a number of concerns including allegations that N’s father had committed sexual offences against children. The local authority warned the mother not to allow him into the home, but received information that she had not complied with that warning. There were further concerns about poor conditions in the home and G’s school made a referral arising out of evidence of severe neglect. After an investigation under s.47 of the Children Act 1989, the children were made subject to child protection plans. After struggling to see the children at home, the social workers asked for a police welfare check which was carried out on 2 March 2022. The police found the children living in dangerous and unhealthy conditions and took them into police protection under s.46 of the 1989 Act. At that point, the local authority started care proceedings and both girls were made subject to interim care orders and placed together in foster care. In the judgment now under appeal, the judge observed that this was “a highly-skilled foster placement” where the girls thrived.

G’s father was joined as a party to the proceedings, but N’s father has played no part in them. The mother moved to another local authority area, and it later emerged that she was expecting another baby. In the course of the proceedings, the mother and G’s father conceded that the threshold criteria for making care orders under s.31 of the Children Act were satisfied on the basis of evidence as to the conditions in which the children had been found by the police in March 2022. Thus the issue for the court was what orders to make for the future care of the girls. To assist resolving that issue, various assessments were carried out, including parenting assessments of the mother and of G’s father and his current partner, a special guardianship assessment of G’s paternal grandmother and her partner, and two sibling assessments of the relationship between G and N. The local authority filed an application for a placement order in respect of N, and the further documents filed with the court included a statement from the local authority “family finder” and a child permanence report for N.

At the final hearing, the position of the parties was as follows.

The final hearing took place over five days, at the end of which judgment was reserved and handed down on 25 November 2022. Following judgment, the judge made a child arrangements order providing for G to live with her father and a care order in respect of N, on the basis that she would be placed in long-term foster care, either with the carer with whom she and G have been living since the start of proceedings or with another long-term carer. The application for a placement order was dismissed. The judge made a further order under s.34 of the 1989 Act that the local authority “shall permit generous and flexible contact between G and N to include overnight contact in G’s placement for N”. He gave G’s father liberty to apply in the event of the contact arrangements proving unsustainable. The local authority sought clarification of the judge’s reasons which was provided on 3 January 2023. On 27 January 2023, the local authority filed notice of appeal (five weeks out of time) against the refusal of the placement order. On 13 March 2023, I granted an extension of time for appealing and permission to appeal.

Since the hearing, N has remained with her foster carer but G has moved to live with her father who, as stated above, lives in another part of the country some 200 miles away. At the appeal hearing we were informed that, contrary to the plans for the children, no face-to-face contact has yet taken place. One other development is that the mother has now given birth to the baby she was expecting, and after a period in a mother and baby unit is now living with the baby in the community. To date, no proceedings have been started in respect of the new baby.

At the start of his judgment, the judge observed that the proceedings were unusual in that there were “no fewer than seven reasonably arguable options” for the court to consider. In summary, these were:

In summarising the background, the judge identified what he regarded as an important feature of the case at paragraphs 7 to 9:

The judge then referred briefly to the relevant law. He recorded that the welfare of each child was his paramount consideration, adding that, when considering the adoption care plan for N, the paramount consideration was her welfare throughout her life and the matters to be considered included those in the checklist in s.1(4) of the Adoption and Children Act 2002 (as opposed to the checklist in s.1(3) of the Children Act 1989 which was applicable in the case of G for whom adoption was not an option). He summarised the principles derived from case law in these terms (paragraphs 18 and 20):

The judge then analysed the evidence and arguments under the heading “The Welfare Analysis. The Checklists”. First, he considered the children’s wishes and feelings. He noted G’s wish to be with her mother which he said had perhaps been “drowned out by the volume of her desire not to be separated from her sister”. In contrast, he observed that

Next, he considered the extent to which the children’s needs would be met under the various options. He stated that there was no sound basis on which he could currently conclude that the mother could meet their needs. He then considered the capacity of members of G’s family to meet her needs. It is unnecessary for the purposes of this appeal to refer to this save to note that he formed a positive view about both the father and the paternal grandmother. He added, however:

Continuing with his evaluation of the extent to which the children’s needs would be met under the various options, he observed:

The judge then considered the competing options of adoption and fostering for N:

The judge continued:

Proceeding with his analysis of the relevant factors in the welfare checklists, the judge considered the risk of significant harm and concluded that such a risk remained if the children were returned to their mother. He continued:

The judge then set out his final analysis under the heading “The Balance”, starting by asking the question: “How then to weigh these various factors within the checklists against each other in the context of the various options available?” He carried out a detailed balancing of the factors relevant to the decision about G’s future, identifying the advantages and disadvantages of each option, before concluding that a placement with her father was to be preferred. Turning to N, he concluded that a return to her mother was “for the moment … impossible”. He continued:

Following the handing down of the judgment, the local authority submitted a request for clarification. The questions relevant to this appeal can be summarised as follows:

The local authority advanced two grounds of appeal: (1) the judge carried out an incorrect balancing exercise, and (2) the judge carried out an incorrect implementation of the welfare checklist. Inevitably, there was a degree of overlap between these two grounds and it is convenient to consider them together, highlighting the arguments made by Ms Clare Gould in her helpful written and oral submissions which were adopted by Mr Gary Crawley on behalf of the guardian.

The principal point made on behalf of the appellant was that, whilst the sibling relationship was of importance to N, the weight given to it by the judge was excessive. The balancing exercise ought to have weighed a realistic evaluation of the benefit of such contact against the benefit to N of living in a secure and stable adoptive placement that was not subject to the uncertainties of being a looked after child. In evaluating the benefit of contact, the judge ought to have taken into account the evidence that the relationship, though important to N, was less important to her than to her sister. He ought also to have taken into account the fact that, even if N was in foster care, the level of contact would be significantly less than it has been when the sisters have been living together. The level of contact would be further constrained by the fact that G would be living 200 miles away with her father.

It was submitted that the judge had gone astray when reaching the decision about N’s future by attaching excessive weight to G’s wishes and feelings. It was accepted that the checklist in s.1(4) of the 2002 Act required the court inter alia to have regard to the wishes and feelings of the child’s relatives, including G. Ms Gould submitted, however, that it was clear from the judgment that the judge had prioritised G’s strongly expressed wishes and feelings regarding her relationship with her sister and allowed them to outweigh N’s welfare needs.

Ms Gould cited the observation of McFarlane LJ in Re W (A Child) [2016] EWCA Civ 793 at paragraph 75 approving the comment of counsel that

Ms Gould submitted that, in contrast, the judge gave insufficient weight to other factors which favoured adoption over fostering. She drew attention to the language used by the judge when referring to some of the advantages and disadvantages of adoption and fostering. In particular, she pointed to his observations that “the arguments against the girls remaining in foster care were the usual ones – they would be subject to continuing professional involvement and the prospects of moves in future”, that “an adoptive placement would not come with any guarantee of success”, and that “the professional approach is to favour adoption over long-term fostering for any child under the age of around 5 or 6”. It was submitted by Ms Gould that in these respects the judge had carried out the balancing exercise and the analysis of the factors in the welfare checklist by reference to generalisations about adoption and fostering, rather than the specific needs and circumstances of the child. Furthermore, although he had identified seven options at the outset of his judgment, he had failed to address options (6) and (7) in his ultimate analysis. As those options might have provided a way forward for N to be adopted while maintaining the necessary level of contact with her sister, this was a significant omission.

In her clear and cogent submissions on behalf of the mother, Ms Martha Gray accepted that the judge had concluded that the magnetic factor for him in making his decision was the impact which a placement order would have on sibling contact. It was her case, however, that he was not wrong to do so. His finding about the extent of this impact was supported by the evidence in the sibling assessments, the permanence report, and the social worker’s statements, as well as the professional evaluation of the guardian. The careful analysis in paragraph 33 of the judgment of the difficulties of achieving in an adoptive placement the level of sibling contact which N needed led the judge to the conclusion summarised in the response to the request for clarification that “no adoption plan or order would be likely to provide the level of contact required between the girls”.

It was Ms Gray’s case that the judge’s analysis was fully in accordance with the requirements laid down by case law. He identified the options at the start of his judgment and dealt carefully with the advantages and disadvantages of each. In particular, he engaged with the key differences between fostering and adoption. Ms Gray cited the summary of those differences identified by Black LJ in Re V (Children) (Long-term Fostering versus Adoption) [2013] EWCA Civ 913 at paragraph 96:

Ms Gray submitted that the judge had been required by statute to take into account G’s wishes and feelings when reaching a decision whether to make a placement order in respect of her sister. Rightly, however, he had acknowledged that this was just one part of the analysis. It was her case that, reading the judgment as a whole, it could not be said that the judge had fallen into the trap of allowing G’s strongly expressed wishes and feelings to dictate the outcome. She drew attention to the way in which the judge at paragraph 49 of the judgment had expressly revisited his conclusions for each child in the light of his conclusions for the other.

Under s.1 (1) and (2) of the Adoption and Children Act 2002, whenever a court is coming to a decision relating to the adoption of a child (which include whether to make a placement order) the paramount consideration must be the child’s welfare throughout her life. The addition of the last three words distinguishes this principle from its equivalent in s.1 of the Children Act 1989, a distinction which is also reflected in the welfare checklist in s.1(4) of the 2002 Act which requires the court to have regard to the following matters among others:

The factors in s.1(4)(f) do not feature in the checklist in s.1(3) of the Children Act. They are matters which must be taken into account when making any decision relating to adoption and follow on from the obligation to give paramount consideration to the child’s welfare throughout her life. A child’s existing relationships are obviously an important component of any analysis of her welfare “throughout life”. And a sibling relationship is a paradigm example because, unlike nearly every other relationship, it is likely to be lifelong.

The approach to be adopted by a judge when deciding whether to make a placement order is now well-established and need not be repeated at length again here. Under Article 8 of the ECHR, any interference with the exercise of the right to respect for family life should be proportionate to its legitimate aim. There can be no greater interference than the permanent removal of a child. Consequently, the relationship between parent and children can be severed “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will do”, per Baroness Hale of Richmond in Re B (Care Proceedings: Appeal) [2013] UKSC 33 [2013] 2 FLR 1075 at paragraph 198. A judge determining an application for a placement order must therefore carry out a rigorous analysis and deliver a reasoned judgment. The key requirement of the judgment, as stated by McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 at paragraph 54:

The role of the appellate court hearing an appeal against a judge’s decision on such an application is, first, to consider whether the judge’s decision was sufficiently founded on the necessary analysis and comparative weighing of the options and, secondly, if it was, to determine whether the orders were necessary and proportionate. As to the second issue, the approach to be adopted by this Court is clearly delineated by the decisions of the Supreme Court in Re B (Care Proceedings: Appeal) [2013] UKSC 33 [2013] 2 FLR 1075 and Re H-W (Children) [2022] UKSC 17, as summarised by Dame Siobhan Keegan at paragraph 49 of the latter case:

In the present case, the judge began by identifying the options. At an early point in the judgment, he succinctly reminded himself of the requirement to “consider the welfare analysis of all options globally and holistically, that is to say in the round and together”. His assessment was carried out by reference to the relevant factors in the welfare checklists. In embarking on his ultimate analysis, which he headed “The Balance”, he framed the question as being how to weigh the various factors he had identified within the checklists against each other in the context of the various options. At the end of the judgment, he revisited his conclusions in respect of one child in the light of his conclusions in respect of the other. All these elements demonstrate that the judge was fully aware of the approach he was required to adopt.

It is correct to say that the concluding section of the judgment does not set out the advantages and disadvantages of adoption and long-term fostering in a balance sheet. But, although such a style might be prudent as a method of ensuring and demonstrating that all relevant matters have been identified and considered, it is not an imperative. As McFarlane LJ observed in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, while a balance sheet may be “of assistance” to judges, “its use should be no more than an aide memoire of the key factors and how they match up against each other …. a route to judgment and not a substitution for the judgment itself”. Usually, the judge will draw all the strands together in the concluding section of the judgment, but not invariably. As Peter Jackson LJ said in this Court in Re S (A Child: Adequacy of Reasons) [2019] EWCA Civ 1845 at paragraph 34):

In this case, I am confident reading the judgment as a whole that the judge identified the factors relevant to his decision. He acknowledged the greater degree of permanence and security provided by adoption as opposed to fostering (judgment paragraph 36). He recognised that a foster placement involved ongoing professional involvement and the prospect of further moves of placement (paragraph 31). It is true that he did not analyse these features at length, but they were certainly in his mind. And for my part, I do not think that his description of the arguments advanced against adoption in this case as being “the usual ones” indicated a failure to take them seriously or attach to them appropriate weight. I have considered Ms Gould’s submission that the judge determined this issue by reference to generalisations about adoption and fostering, rather than the specific needs and circumstances of this child. Reading the judgment as a whole, however, I am unpersuaded by this argument. I find that the judge recognised and took into consideration the clear advantages of adoption, and the disadvantages of foster placements as part of his overall evaluation. In some instances he did so by reference to generalisations but in doing so he was largely reflecting what was said in the evidence. On other aspects, he focused on the specific circumstances of the case.

It is clear that the “magnetic factor” in the judge’s estimation was the importance of the sibling relationship. As he said in his response to the request for clarification, he concluded that the impact of the loss of G upon N was likely to be less than the loss of N upon G. Nevertheless, he found it to be of very great importance to N. It is correct, as Ms Gould reminded us in oral submissions, that there have been some negative features of the relationship. When the children arrived in care, G aged only 7, was assuming an inappropriate degree of responsibility for caring for her sister. It is also correct, as Ms Gould emphasised, that the judge was clearly impressed by the strength of G’s expressions of feelings about being separated from her sister. As Ms Gray submitted, he was entirely right under s.1(4)(f)(iii) of the 2002 Act to take into account G’s wishes and feelings. Whilst describing it as “touching and troubling”, however, he accepted that it was “but one consideration”. The factor to which he attached particular and ultimately decisive weight was, under s.1(4)(f)(i), the value to N of the sibling relationship continuing. Given the evidence about the relationship between G and N in the sibling assessments and other documents put before the court, and the opinion of the allocated social worker and the guardian that ongoing sibling contact was “essential”, it is unsurprising that the judge regarded it as the “magnetic factor”.

In my view it is equally unsurprising that the judge concluded that the level of sibling contact which N required could not be realistically achieved were she to be adopted. His analysis at paragraph 33, reiterated in his response to the request for clarification, was irrefutable. The evidence before him was that any requirement for sibling contact narrowed the pool of possible adopters. The requirement for contact on a scale necessary to meet N’s interests would reduce the pool still further. In addition, prospective adopters would be discouraged by the fact that G would be having contact with her mother as well as with N so that the “usual seal” between adoptive and birth families could not be maintained. No sufficient thought had been given to this issue when the plan for adoption was prepared. In those circumstances, the judge was entitled to conclude on the evidence that this was not a case where nothing else but adoption would do but, rather, that long-term fostering was the better option.

Although the judge did not refer in the concluding section of his judgment to two of the options he had identified at the outset – options (6) (approving the care plan for adoption whilst refusing to make a placement order) and (7) (making a placement order and an order for sibling contact under s.26 of the 2002 Act) – they were effectively ruled out by his conclusion that the level of sibling contact which N required could not be realistically achieved were she to be adopted.

I therefore conclude that this is a case where the judge carried out the necessary analysis of the relevant factors in the welfare checklist and comparative weighing of the options. For my part, I see no basis on which this Court could properly say that he was wrong. It was for those reasons that I decided that the appeal should be dismissed.

I was concerned to be told that no direct contact has taken place between the sisters since G moved to live with her father. The local authority is under an obligation to arrange contact under the judge’s order. Given the unanimous view of the professional witnesses that sibling contact is “essential”, it is imperative that the local authority complies with the order, and that its compliance is scrutinised at the regular Looked After Child Reviews.

I agree.

I also agree.