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CV (A Child)(Placement Order) [2022] EWCA Civ 930

The Court of Appeal granted the mother’s appeal against a placement order.

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Background

The child, C, now three years old, has a number of medical conditions and requires a particular level of care; she is particularly vulnerable to stress. She spent her first 16 months in hospital, with her mother present. Since discharge C has been living with specialist foster carers, Mr and Mrs D, whose commitments to C required each of them to work part-time so that one of them was always available. The Ds had expressed an interest in adopting C or caring for her long-term, but only with the benefit of an extensive package of financial support. The LA did not agree such a package regardless of whether the placement would be for an adoption, SGO or long-term fostering.

At the final hearing, before an experienced CJ, the LA sought a care order and placement order. The mother contended for C's return to her; in default of that she supported C remaining with her current carers in the long term. The father supported the mother's position. The guardian was torn; she considered that a stable long-term placement with the current carers would be the best option if it could be secured, had done everything she could to find a way the placement could be supported, but acknowledged that detailed care planning was outside her control. Accordingly she supported the LA's application on the basis that adoption was the "next best" option although there was the potential for a move being detrimental. She argued that a placement search should be limited to six months, with the plan thereafter reverting to long term foster care; she hoped that the LA would, in those circumstances, reconsider continuing the current placement.

The judge said that if she had a "magic wand" she "would be waving it incredibly hard to have this little girl stay where she is" but was not able to achieve this. She made the care and placement order, but urged the LA to "look at the possibility of the current carers adopting, if this what they want to do" and, if no adoptive placement is found, "to move heaven and earth to keep her where she is."

The appeal

The core issue was whether the judge had 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. The mother argued that she had failed to give proper consideration to C remaining with her current carers.

Baker LJ noted that it was not immediately clear whether the option of C remaining where she was had been considered as one of the "realistic options". It appeared that because the Ds were saying that they would not care for C long-term without financial guarantees, which the LA said they could not give, the judge considered that C staying with them as long-term foster carers was not a realistic option at that stage. Accordingly she never weighed the advantages and disadvantages of such a placement against the other options as she would, had she viewed this as a realistic option.

Further evidence was admitted during the appeal hearing about Mr and Mrs D's response to the making of the placement order; they are very keen to avoid disruption for her. There is optimism that they will be prepared to care for her either as long-term foster carers or adopters despite a reduction in the financial package available.

Conclusion

Although the judge did refer to some advantages of C remaining where she was and disadvantages of a move, she did not carry out the balancing exercise with the "clarity and particularity" required by the decisions of the CA in Re G and Re B-S and of the Supreme Court in Re H-W.

There are clear welfare reasons in favour of C remaining with Mr and Mrs D and, particularly in the light of the new information, placement with them as long-term foster carers is clearly a realistic option.

The appeal was granted on the grounds 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.

The case is remitted to the Family Court to be heard by a different CJ who will be able to consider all the realistic options. No view was expressed by the CA about what the outcome should be.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII