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Home > Judgments

B-P (Children - Adoption or Fostering) [2018] EWCA Civ 2042

Appeal concerning a court’s decision not to grant Placement Orders in respect of three children under 5 years of age and making final care orders only having concluded that they could not be returned to the care of their parents.

The substantive care proceedings related to five children of varying ages, the oldest two of whom were placed separately from the youngest three children, A, M and I (aged 4, 3 and 18 months respectively), who were kept together in a foster placement and enjoyed regular contact with their parents and older siblings during the proceedings. The local authority's final care plan for the youngest three children was that they be made the subjects of final care orders and placement orders with a view to them being placed with adopters in due course.

The final hearing was heard by a Recorder ("the Judge"), who is described as having delivered an "exceptionally long" judgment at the conclusion of the hearing. Within this judgment, the Judge dealt with the evidence he had heard during the course of the trial, the father's application for an adjournment and further assessments and he considered the care plans for all five of the children. Having done so, the Judge approved the final care plans recommending that the two oldest children remain in foster care and granted final care orders in respect of all of the children but rejected the local authority's application for Placement Orders in respect of the youngest three.

In reaching that decision, the Judge had placed particular emphasis upon the fact that the children "…were part of a family who love them and can contribute to ensuring that they feel loved and nurtured", that they appeared to be; "thriving in the care of Mr and Mrs P, with whom they will continue to live under an order for long-term foster care" and concluded that "…placement for adoption is not in the welfare interests of the girls". The Judge was concerned about the implications for the sibling group due to "the risk that the younger girls would be separated" and the fact that "Given any separation would take place in several months' time, when the children would be even more closely bonded together, it is difficult not to conclude that separating [them] would be devastating for them, exacerbated (in all probability), by the adopted child losing contact with their other siblings and wider family".

The Appeal
The parents did not appeal the Judge's decision but the local authority had immediately appealed the decision concerning the Placement Orders sought. That came before the Court of Appeal on 6th September 2018 when the appeal was allowed and the matter was remitted for an urgent hearing with directions made.

On 20th September 2018 Lord Justice Peter Jackson delivered the lead judgment pertaining to the decision to allow the appeal in which he considered the four specific ways in which the Judge was said by the local authority, supported by the guardian, to have erred in his judgment [12]; namely that:

(1) He did not assess the effect on the individual children of each of the placement options and as a result lost sight of the interests of M and, in particular, of I.  He gave no weight to their very young ages, instead observing at [179] "These three children are not all young babies."

(2) He entirely failed to place the advantages of adoption and disadvantages of long-term fostering into the balance. He referred to authorities in which these features are considered, but he did not carry those features forward into his assessment.

(3) He overstated the value to the children of a continuing relationship with their family, and in particular with their parents.  His findings in relation to the value of contact with the parents ignores his findings about their significantly deficient parenting and the evidence about the disturbing effect of contact on A, to the point where she was on occasions refusing to attend.

(4) He was wrong to give such weight to the local authority's inability to guarantee an adoptive placement for the three girls together, when the reality is that this is scarcely ever possible without a placement order.

Although it was acknowledged that the Judge took "care" in approaching his decision and that his decision regarding the need for final care orders in respect of all of the children was unchallenged, his decision not to grant Placement Orders did, the Court of Appeal concluded, warrant the appeal being allowed.

Primarily, it was determined that the Judge "did not give any weight at all to the evident potential benefits for these children of adoption, whether together or separately, in terms of commitment, security and permanence…Nor did he confront the evident potential drawbacks of long-term foster care". Furthermore, although he referred to the relevant authorities on these points, "…citation is not a substitute for assessment and he did not apply those principles to the actual situation of these children", the result being that "a number of potentially weighty considerations that needed to be balanced alongside issues such as possible sibling separation were lost" [15]. 

Although the other grounds were deemed to primarily amount to further instances which exemplified the same point, the Judge was specifically criticised for the lack of "underpinning" with respect to his conclusion that adoption would be 'harmful' to these children [16].

Having reached this conclusion, the Court of Appeal decided that the matter should be remitted for a re-hearing by a different Judge as, although the expediency of the Placement Orders being substituted by the Court of Appeal was accepted in principle, it was determined that such an important issue should be looked at "afresh" by a different Judge following the filing of a psychological report to analyse the children's long-term emotional needs and the advantages and disadvantages to them of being fostered and / or adopted as ways of meeting those needs.

Summary by Lucinda Wicks, barrister, Coram Chambers
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Neutral Citation Number: [2018] EWCA Civ 2042
Case No: B4/2018/1788

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE-ON-TRENT COMBINED COURT
Recorder Clark
SQ17C00285


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20 September 2018


Before :

LORD JUSTICE UNDERHILL
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE FLOYD
and
LORD JUSTICE PETER JACKSON
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Between :

Re: B-P (Children) [Adoption or Fostering]
 
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Nicholas Goodwin QC and Christopher Adams (instructed by Staffordshire County Council) for the Appellant local authority
Clare Dillon (instructed by David Foster & Co. Solicitors) for the Mother
Michael Jones
(instructed by Moseleys Solicitors) for the Father
Nina Bache
(instructed by McGuinness Legal) for the Children

Hearing date: 6 September 2018
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Judgment Approved

Lord Justice Peter Jackson:
Introduction

1. At the end of a hearing on 6 September we allowed an appeal from an order of the Family Court refusing a local authority's application for placement orders in relation to three very young children, remitted the application for urgent rehearing, and gave directions to expedite that process.  This judgment contains my reasons for concurring in that decision.

2. The children are Alice, Mary and Isla (as I will call them), three sisters who were at the time of the order under appeal aged 4, 3 and 18 months and were living together in foster care.  Recorder Clark, sitting in the Family Court at Stoke-on-Trent, heard the proceedings in relation to them and their two older half-siblings over the course of five days in May 2018.  On 9 July, he handed down a reserved judgment and on 26 July made orders.  Having ruled out the parents, he made care orders for all five children but refused to make placement orders for the younger three, instead concluding that they should remain in foster care throughout their childhoods (the older children are placed elsewhere).  The local authority appealed with the permission of Moylan LJ.  The appeal was opposed by the parents but supported by the Children's Guardian.

3. It is unnecessary to do more than sketch the history. Local authority involvement with this family stretches back to 2006, but it was not until September 2017 that proceedings were issued.  At that point the five children were removed into foster care, with the younger three being placed together with foster carers, Mr and Mrs P.  The court therefore had first to decide whether any of the children could return home and, if not, what alternative placements would be appropriate.  In relation to this second question, the realistic options were for the three girls to remain in foster care, Mr and Mrs P having said that they were prepared to keep them indefinitely, or for them to be adopted, either together or, if that was not possible, separately. 

The decision of the Family Court
4. The recorder's judgment is exceptionally long.  Having set out the parties' positions, he devoted no less than 18 pages to a copious citation from statute, caselaw and extrajudicial statements.  He then carefully assessed the parents as witnesses.  He extensively reviewed the family history and the long-standing involvement of child protection agencies.  He accepted the evidence of the allocated social worker, who had known the family since 2011, that the parents love the children but that the lack of emotional support and nurture was all too apparent, this being a view shared by the other professional witnesses.  On the basis of all the evidence, he found the threshold of significant emotional harm to have been crossed. 

5. Turning to the welfare assessment, the recorder considered and refused the father's application for an adjournment for further assessments to be conducted.  He reviewed the evidence in relation to the two older children and concluded that their welfare could only be secured by their remaining in foster care.  He then recorded the evidence in relation to Alice, Mary and Isla.  This came from a consultant paediatrician, the allocated social worker, the social worker for Mr and Mrs P, the family-finding adoption social worker, the parents and the Guardian.  That evidence showed them to be children who to varying degrees have learning difficulties and show the marked consequences of early neglect, but who have made great progress in foster care.  Applying the welfare checklist, the recorder remarked [176] that "although the welfare of each child has to be considered by the Court, the same welfare considerations apply to all 3 children".  He found that they are happy in their foster home and that they benefit from contact with their parents and siblings, adding "Hopefully, in time, the undoubted love which their parents have for them will manifest itself more clearly."  Each child had suffered significant emotional harm.  The parents could meet their basic physical and educational needs, but could not meet their emotional needs, or give restorative care within the children's timescales [177]. 

6. After the judgment was handed down, the recorder was asked for clarification of certain matters.  In relation to the impact upon the children of their past parenting, he replied: "The picture created by the evidence of children shown little or no attention, affection, or warmth by the parents, [and] deprived of any emotional responsiveness, is compelling.  In [12-year-old]'s case instead of receiving encouragement and support she experienced scorn and impatience.  Often, the children's pleas for attention went unanswered, and then simply left to their own devices.…  In short terms, the picture is disturbing and (particularly in [Mary]'s case) startling."  And he continued: "These were children [who] were especially vulnerable by reason of their learning disabilities.  The bleak portrayal in the LA evidence of their lives whilst in the care of the parents, leaves me in no doubt that the harm which the children were suffering was significant, and could not be allowed to continue." 

7. In the light of these conclusions, the recorder excluded a return to the parents' care for any of the children.  There is no appeal from that decision.

8. The next question facing the recorder, and the one upon which this appeal turns, is what the future plans should be for Alice, Mary and Isla.  As can be seen, this was the last of the series of important decisions concerning the older children and the parents' claims in respect of all five children.  Unfortunately, for a decision of such profound importance to these girls and their family, it received relatively limited analysis in the evidence and in the judgment.  The statement of the social worker contained a chart setting out the factors for and against long-term fostering and adoption, together with some narrative [C440-446], and the report of the Guardian did likewise [E148-152].  Both witnesses gave short evidence confirming their view that adoption was a markedly preferable plan for these children, given their age and past experiences.

9. The recorder addressed this issue at the end of his judgment.  He cited further authorities which consider the differences between long-term fostering and adoption and emphasise that decisions should be made on the basis of evidence and assessment in the individual case rather than on the basis of general presumptions.  He then stated his decision in this manner:

"208.  In the present case, the LA has not demonstrated that adoption for these children is required.  On the contrary, the evidence points away from such a course being in the children's best interests.  I am satisfied that the consequences of placing these children for adoption would be harmful to them.

209.  For the reasons I have set out, it is not in the interests of [Alice, Mary or Isla] to return to the care of their parents.  In short terms, emotional harm, which underpinned the threshold criteria, still pertains, and is likely to continue to do so.

210.  For the children's sake, I hope [the parents] will listen to, and act upon advice from the social workers and other professionals regarding the need to address the issue of empathy, and emotional support.

211.  Although, as matters stand, the children cannot return to the full-time care of their parents, I am satisfied their welfare will best be secured throughout their lives by remaining where they are, cared for by foster parents, who can meet all their needs during their minority, but still part of a family who love them and can contribute to ensuring that they feel loved and nurtured.

212.  If the parents were foolish enough to seek to undermine the children's placement in foster care – the evidence does not point to such a possibility being likely, then the court has power to make appropriate orders, reducing or suspending contact.  If the parents apply in the future to discharge any care order, then such an application will be adjudicated upon by reference to its merits, the children's welfare being the Court's paramount consideration.

213.  …  In deciding in this case that adoption is not only not required, but is not the correct order, I take the view that I am entitled to have regard to the reality that [Alice, Mary and Isla] are thriving in the care of Mr and Mrs P, with whom they will continue to live under an order for long-term foster care. 

214.  For the avoidance of doubt, even if the Ps were to change their mind and withdraw their offer, I find that for the reasons I have given, principally:

(1) The lack of evidence regarding the prospects of suitable adoption placement being found;

(2) The risk that the three younger girls would be separated;

(3) The detriment to them, and their sense of identity, of losing a direct relationship with their family,

(4)  The lack of any evidence of the impact upon the girls of (2) and (3).
placement for adoption is not in the welfare interests of the girls."

10. At an earlier stage in the judgment, the judge had expanded upon point (2):

"194.  It is clear that [Alice and Mary] have become close.  [12-year-old sister] clearly dotes on her siblings.  Given that any separation would take place in several months' time, when the children would be even more closely bonded together, it is difficult not to conclude that separating [Alice, Mary and Isla] would be devastating for them, exacerbated (in all probability) by the adopted child losing contact with their other siblings and wider family."

11. The recorder fixed a further hearing to consider the frequency of contact between the children and their family members: if the children remain in foster care, the local authority proposes contact six times a year, while the father wants it to happen every week.

The appeal
12. The local authority argues through Mr Goodwin QC and Mr Adams that the recorder went wrong in four ways:

(1) He did not at any point assess the effect on the individual children of each of the placement options and as a result lost sight of the interests of Mary and, in particular, of Isla.  He gave no weight to their very young ages, instead observing at [179] "These three children are not all young babies."

(2) He entirely failed to place the advantages of adoption and disadvantages of long-term fostering into the balance.  He referred to authorities in which these features are considered, but he did not carry those features forward into his assessment.

(3) He overstated the value to the children of a continuing relationship with their family, and in particular with their parents.  His findings in relation to the value of contact with the parents ignores his findings about their significantly deficient parenting and the evidence about the disturbing effect of contact on Alice, to the point where she was on occasions refusing to attend.

(4) He was wrong to give such weight to the local authority's inability to guarantee an adoptive placement for the three girls together, when the reality is that this is scarcely ever possible without a placement order.

These submissions are supported by Ms Bache for the Guardian,

13. Mr Jones, responding on behalf of the parents, contends that the recorder's survey of the evidence relating to the circumstances of each child at [163-175] shows that he did consider the children as individuals.  He concedes that the judgment contains a paucity of analysis of the advantages of adoption and disadvantages of fostering but submits that this rather reflects the contents of the professional evidence.  The recorder was entitled to find that adoption would be harmful for these children and that their family relationships, which include not only parents but older siblings and two members of the wider family, were of value to them.  He may have gone too far, Mr Jones fairly accepts, in expecting more evidence from the local authority about the availability of adopters, but he nonetheless sufficiently reasoned his conclusion that long-term fostering was the correct outcome.

Reasons for allowing the appeal

14. I acknowledge the evident care with which the recorder approached this decision.  His solid conclusions in relation to the exclusion of the parents as carers and in relation to the future placements for the older children have not been challenged, nor could they be.  As regards the appeal, decisions concerning sibling groups where there is a possibility of separation upon adoption are never easy, this case being no exception.  They call for the careful assessment of a range of often dissimilar factors emerging from findings about the past/present and forecasts about the future.  All the while, a proper balance must be struck between short and medium-term considerations on the one hand and long-term and lifelong considerations on the other, so that the latter are not eclipsed by the former.  Because of the difficulty and sensitivity of these decisions, where so much depends upon the individual family circumstances, this court will be slow to interfere with a trial judge's considered decision.        

15. Here however we must do so for the reasons given in the grounds of appeal.  The core submission is contained in ground 2.  The local authority has convincingly shown that the recorder did not give any weight at all to the evident potential benefits for these children of adoption, whether together or separately, in terms of commitment, security and permanence.  These potential benefits were described in the professional evidence, they were not just presumptions.  Nor did he confront the evident potential drawbacks of long-term foster care.  His reasoning (see paragraph 9 above) is silent on these matters.  It is true that he rehearsed statements of principle from the reported authorities, but citation is not a substitute for assessment and he did not apply those principles to the actual situation of these children.  The result is that a number of potentially weighty considerations that needed to be balanced alongside issues such as possible sibling separation were lost. 

16. The other grounds of appeal are really instances of this general point.  The recorder carefully summarised the evidence in relation to each individual child, but he did not carry it forward into his final evaluation.  For example, some consideration of the effect of long-term fostering on Isla, aged 18 months, was indispensable.  What would it mean to her not to have legal membership of the family in which she was to grow up but to have regular contact over many years with birth parents from whom she had been removed as a small baby?  For all three children, what was the purpose of regular contact with parents whose parenting had been found to be so significantly emotionally harmful to them?  These questions needed to be asked and answered.  Further, the recorder, I think, expected too much of the local authority when he referred to a lack of evidence about available adoptive placements, when such evidence is often unavailable before placement orders are made; in contrast, he appears at times to have assumed that Mr and Mrs P would remain as foster carers throughout the children's minorities, when that could not be guaranteed either.  Certainly, his conclusions at [208] that adoption would be 'harmful' to these children, and at [214] that children of this age should be long-term fostered even if Mr and Mrs P withdrew now, are so striking as to require considerably more underpinning than appears in the judgment.    

17. For these reasons, I regret that the recorder's welfare decision cannot stand, and that the appeal must therefore be allowed.

18. The question of what order should be made by this court is a more difficult one.  Having in written submissions contended for the decision to be remitted for rehearing, the local authority, supported by the Guardian, asked us to substitute placement orders on the basis that we are in as good a position as the Family Court to balance the competing considerations.  Having given that invitation serious consideration, I would decline it, despite the disadvantages that inevitably flow from the case being remitted.  The ultimate decision is not an easy one, given the children's high level of individual needs and the significance of the issue of potential separation.  Coming at the end of the queue at trial, the issue did not receive the fullest attention and it is of such importance to the children and their family that it would in my view be more appropriate for it to be looked at urgently and afresh by a different judge. 

19. The final matter concerns the evidence needed for the rehearing.  The court already has the evidence of the social worker and the Guardian, whose views are known.  Although further expert evidence on an issue of this kind will not usually be necessary, in the particular circumstances of this case I favour the obtaining of a psychological report to provide a focused analysis of these children's long-term emotional needs and the advantages and disadvantages of fostering and adoption as ways of meeting them. 

Lord Justice Floyd:
20. I agree.

Lord Justice Underhill
21. I also agree.
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