Local Authority and Children’s Guardian fail in appeal against judge’s refusal to support a plan of adoption for children aged 2 and 3: T and R (Refusal of Placement Order) [2021] EWCA Civ 71

This is a post by Sophie Smith-Holland. Sophie is a family law barrister at St John’s Chambers, Bristol. She tweets as @SSmithHolland.

T & R involved an appeal against a decision to refuse to approve a plan of adoption in respect of two children, T (a 3 year old boy) and R (a 2 year old girl) and accordingly, refuse to make placement orders.

His Honour Judge Richards (HHJ Richards) reached this decision despite all of the professional and expert witnesses in the case supporting a plan of adoption. Instead, HHJ Richards decided that it was in T and R’s best interests to be placed in long-term foster care. 

The local authority and the children’s guardian appealed, but the Court of Appeal dismissed their appeals.

I am going to explain the background, HHJ Richards’ decision and the decision of the Court of Appeal. 

Every case is fact specific, but this case is interesting in setting out which factors tipped the balance against adoption. 

Background

T and R had four older sisters, aged 7, 6, 5 and 4 at the time of the appeal hearing. Their family was part of the traveller community. 

The local authority had concerns about inappropriate accommodation and one of the older children (C) was underweight, developmentally delayed, found to have sustained two metaphyseal fractures, and was malnourished and neglected. 

In October 2018 the court made interim care orders in respect of all the children, meaning that they went into the care of the local authority during the court proceedings. The children were placed in three separate foster placements. T and R were placed together. 

The court held a fact-finding hearing in respect of the concerns being raised by the local authority, to try to work out what had happened. For example, to try to work out who had caused C’s injuries. 

After reading and hearing all the evidence, HHJ Richards concluded that: 

• the parents had failed to give priority to C’s needs and failed to maintain necessary and rigorous standards of hygiene for her;

• C’s fractures had been caused as a result of one or other parent pulling or lifting her by the arms with sufficient force to cause the fractures. He was unable to determine which of the parents was responsible but was satisfied that there was a real possibility that either of them had done it;

• there had been occasions during their relationship when the father had lost his temper and become aggressive and sometimes violent (the parents admitted this). The judge accepted the parents’ evidence, however, that they remained in a close relationship which was supportive and respectful, and a reflection of their culture, upbringing and background. He was not satisfied that their relationship was generally characterised by verbal arguments or abuse.

After the fact-finding hearing, the court ordered expert reports from psychologists and an independent social worker. Dr Hunnisett conducted a cognitive assessment of the father and the children. Another psychologist completed an assessment of the mother. An independent social worker, Ms Sue Hayward, completed a parenting assessment to assess the parents’ capacity to provide good enough care for the children. There were some delays in receiving the expert reports due to the pandemic. 

The psychologists concluded that the parents both had considerable cognitive difficulties which restricted their ability to meet the children’s needs. Dr Hunnisett noted that the parents had a real and deep love of their children, want the best for them, and were unswerving in their belief that only they can provide what is best in terms of care, education and growing up with an understanding of their culture and heritage as members of a traveller family. She concluded, however, that they would be overwhelmed by the demands of caring for the children. In her report, Dr Hunnisett recommended that the children all remain in their current foster placements. 

Ms Hayward described the parents as strongly identified with traveller culture and said the older children had a strong sense of identity and loyalty to their parents. Although there was no doubt about the deep love and commitment of the parents to the children, it was her clear view that the children did not feel safe in their care and that there was no prospect of the parents acquiring the insight and skills needed to look after the children safely within reasonable timescales, if at all. In her report, Ms Hayward recommended that all six children should remain in foster care, including T and R who had formed an attachment to their carers. 

The final hearing

At the final hearing, the local authority asked the court to make final care orders in respect of all the children. The local authority’s plan was that the older four children would be placed in long term foster care and T and R would be adopted. The children’s guardian supported the local authority’s case but felt that the issue of whether T and R should be adopted was a finely balanced decision. 

The court heard evidence from all of the professional and expert witnesses and the parents. In addition to those mentioned above, the court heard from the local authority adoption social worker (RA), the social worker allocated to the family (TR) and the children’s guardian. 

In her oral evidence, Dr Hunnisett told the judge that she had been persuaded by the arguments put forward by TR and the children’s guardian and now supported the plan for adoption for T and R. She said that it was their ages which persuaded her that this was the right outcome. Importantly, she added that sibling contact was very important for all six children and she saw no reason to exclude the parents from that contact, provided they accepted that the children would be placed away from the family home.

Ms Hayward said in her oral evidence that if T and R could not remain in their current placement (at the time of the hearing it was assumed that they could not) she would favour adoption. 

RA said she was optimistic that an adoptive placement could be found for T and R that would allow for inter-sibling contact in circumstances where the siblings were having contact with their parents. It was her opinion that prospective adopters who did not accept such a course would be rejected as the wrong match for the children. 

TR’s evidence was summarised by the judge in these terms: 

“…the need for permanence was the ultimate goal and it came above the need to maintain the children’s culture and heritage and with that, inevitably, the risk of contact never taking place were there to be an adoption.”

The children’s guardian shared the unanimous professional opinion that the children could not safely be returned to the care of the parents. With regard to T and R, she favoured adoption, although she told the judge that it was a finely balanced decision. She said that her support for adoption was the ages of T and R. She regarded sibling contact and the maintenance of their cultural heritage as essential. She thought it likely that any adopters would require expert assistance to understand and promote traveller culture, describing it as an issue that would “not go away”. Ultimately, she felt that the security offered by adoption came before all else and, although finely balanced, her opinion was that adoption would give the best prospect of a settled childhood for T and R to grow up together.

In their evidence, the parents stressed the fundamental importance they attached to their culture and put forward a case that the children should be returned to their care. 

The decision

HHJ Richards’ decision was handed down on 28 August 2020. His order was to approve the plan for the older children, but he declined to endorse the plan in respect to T and R and invited the local authority to reconsider the plan, with a view to them remaining in long-term foster care, like their siblings.

The local authority and the children’s guardian did not agree with the decision and asked for permission to appeal against the dismissal of the placement order applications. The judge refused the applications and directed that the children should remain in the interim care of the local authority, pending any further application for permission to appeal. 

Permission to appeal was granted on 2 November 2020 and it was listed for an appeal hearing on 9 December 2020. At the time of the appeal, T and R were still living together in the same foster placement and they had formed close attachments with their carers. 

The appeal – consideration of the judgment

The appeal was heard by the Court of Appeal and the main judgment was from Lord Justice Baker, who went through HHJ Richards’ judgment very carefully. He set out the following main points:

• HHJ Richards concluded that T and R have a strong and real sense of belonging to their family. He acknowledged the importance of the cultural heritage issues and concluded that there was “no doubt that the children had truly lived the traveller culture and life with their parents.”

• HHJ Richards noted that contact was considered essential between the siblings between all the professionals and experts in the case. He said “It is of genetic and cultural importance to them. It has been described as an absolute necessity and so important that prospective adopters who would not contemplate it should be disregarded and that the psychological wellbeing of the whole group would be damaged if not maintained.”

• HHJ Richards had set out the advantages and disadvantages of the three options for the children: return home, long term foster care and (for T and R) adoption. He concluded that none of the children should return home to the parents, that the older children should remain in long-term foster care and he then thought very carefully about long-term foster care versus adoption for T and R

• regarding long-term foster care, in addition to the advantages of a safe environment and ongoing family contact, HHJ Richards identified that it would “keep alive, reinforce and foster the background from which these children come and which they understand”. He noted that the disadvantages of long-term foster care are well known, the principal disadvantage being it is different to returning home or adoption as though described as permanent, there is always a risk that it can change

• regarding adoption for T and R, HHJ Richards considered that the advantages of adoption were “well known”. Adoption would offer the prospect of selected carers committed to meeting the needs of the children and with life-long commitment to security and emotional stability. It is referred to as a “forever family”. Further, due to the children’s ages, there was a risk that they would spend the entirety of their lives as being looked after children

• in respect of the disadvantages, he noted that adoption would inevitably mean that contact could not be secured with anything like certainty with their siblings and contact with their birth parents would be severed in law and fact. The relationship with the parents, apart from the usual aspects of natural love and affection, comes with the “only real hope that these children have of knowing or understanding their background, where they come from, and, through their culture and heritage, what I would describe as their place in the world.” In respect of contact, with adoption “there is no effective mechanism for it to be maintained other than, in reality, by the agreement and good will of the adopters, upon whom everybody would have to rely in terms of keeping their word. The court would be unlikely to foist an unwanted contact order upon adopters in respect of sibling contact, and certainly not in respect of parental contact.”

• HHJ Richards concluded that on the facts of this case, the advantages of adoption were outweighed by the real disadvantages in the risk pertaining to contact and the consequences of it. He said: “I am not satisfied that the strict test for severing the relationship between children and their parents and their siblings is satisfied, and I am not able to find any reassurance that a factual continuing of the sibling relationship can be assured to anywhere near the level of certainty that has been described to me and which in my judgment is needed to reflect its importance to these children genetically and culturally. Additionally, in my view, there is a real need to ensure that the culture and heritage of the two children is not lost by being placed away from it. It is of real value to them and it is where they come from. The risks of that being diluted to nothing or being ignored are not fanciful in my view. They are real risks. That aspect of their development can only be maintained by contact with their parents, which in my judgment simply would not happen in an adoptive placement as opposed to a foster placement.” 

HHJ Richards recognised that in refusing to make the order sought and refusing to approve the care plan, he was departing from the recommendation of the children’s guardian and said “I do so in circumstances where I find that the decision is not as finely balanced as the guardian felt it was. I have had the considerable advantage of being able to hear detailed evidence and cross-examination about the powerful arguments on each side and particularly in respect of a placement order. For my part, with those advantages, having heard from Dr Hunnisett and the independent social worker about the crucial value of contact, which was recognised by the guardian and emphasised by her, that, coupled with my assessment of the importance of retaining links for the younger children with their culture and heritage which I am persuaded to give more weight to than the guardian, leads me to a different conclusion. It is less finely balanced for me because of the unique privilege I had of hearing the evidence given and tested.”

He concluded, “I accept that it can be said that there is no right answer, but in my view, when measured against the yardstick of proportionality, which is what the welfare checklist requires, and reminding myself of the strict test that nothing else will do, in my judgment it makes that decision less finely balanced for me; one where plainly adoption is not in the children’s best interests as a placement of last resort. It is not necessary in this case. For those reasons, I depart from the recommendations of the guardian.”

The appeal – decision

Lord Justice Baker noted that HHJ Richards had reached a different conclusion to the professional and expert witnesses and concluded “In my view, he was entitled to reach that conclusion and his exposition of his reasons was clear and convincing.” He made the following key points: 

• due to the advice of Dr Hunnisett, if the court did not make sure that contact between the six children continued it would risk damaging the psychological development of the whole sibling group. Whilst RA was optimistic about the prospects of finding adopters who would be willing to accept ongoing sibling contact, neither she nor anyone else could guarantee that such adopters could be found nor that they would adhere to any commitment to contact. There was plainly a risk that sibling contact would not take place after adoption. Given the fundamental importance attached to such contact by the professional witnesses, HHJ Richards was entitled to conclude in the interests of T and R that the risk was one which should not be taken

• HHJ Richards attached importance to continuing contact between T and R and their parents. One of his reasons for doing so was his conclusion that contact represented the best prospect of maintaining and nurturing the children’s understanding of their cultural history and of their place in the world. His findings that T and R had a strong and real sense of belonging to this family and as to the central importance of their cultural heritage to all of the children, including the younger two, were plainly open to him on the evidence. He reached the view that it would be difficult for the children to retain sufficient awareness of their heritage in an adoptive placement, in part (but not only) because of the strong opposition to adoption within the traveller community. 

The Court of Appeal decided that HHJ Richards had provided clear and coherent reasons for his decision, including, as case law requires, his reasons for departing from the recommendation of the children’s guardian. Therefore, the court declined to interfere with the decision and the appeal was dismissed. 

Comment

This case provides a reminder that in care and placement order proceedings, it is the judge alone who has the responsibility of making the decision as to the future of the child or children and that judges should not and do not just blindly follow the advice given to them by professional or expert witnesses. Instead, they consider and analyse all of the evidence themselves and reach their own conclusions in respect of what is in the child or children’s best interests. 

The case also highlights the importance of carrying out a thorough balancing exercise in respect of the advantages and disadvantages of each of the realistic options, which is specific to the facts of the case and the children concerned. The children’s guardian had in her evidence, relied on the ‘usual’ advantages in respect of adoption, which are well known. In practice, I often see that the ‘usual’ advantages and disadvantage of adoption are weighed against the ‘usual’ advantages and disadvantages of long-term foster care. Whilst important considerations, it is not enough to just regurgitate these points in the balancing exercise, without more. In this case, the ‘usual’ benefits of adoption were actually outweighed by the risks specific to the subject children and the facts of the case, particularly the need for T and R to maintain a relationship with their family and to ensure that their culture and heritage was not lost.

The idea of long-term foster care for children aged 3 and 2 years old might not sit very well with some readers. In practice, I often see children described as ‘adoptable’ due to their young age (usually aged 5 or less) and this does seem to tip the balance in favour of adoption in the minds of professionals sometimes. In my opinion, this practice encourages inadequate consideration of the factors that weigh against adoption over and above the ‘usual’. HHJ Richards warned strongly against this approach in his judgment and made clear that he was concerned that “the approach to the placement of the children by way of adoption has been driven by a combination of their age and that they are adoptable. For my part, it has overlooked – to some considerable degree – the loss which I have identified and which would come with such a course and an acceptance of the powerful ‘usual practice’ without a true counterbalance of what are also powerful factors in this case against the making of a placement order leading to adoption. It is not right in my judgement for these two young children. There is no such thing as the ‘normal order’ because of age and apparent ‘adoptability’ [my bold]

I hope that this judgment might (1) invite professionals to re-evaluate how they carry out the balancing exercise and (2) provide a reassuring example for parents and those who represent them that “nothing else will do” remains the test for the court when there is a plan of adoption. 

Feature Pic: Swing by Michael Kappel at Flickr with thanks

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