This question was asked by Lord Justice Peter Jackson in a judgment reported last month,  Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761

The risk here was of future significant harm and the remedy was a closed adoption.  However, this case appears to me to be one where an open adoption or long-term fostering with defined contact should have been possible options. Although a placement with other family members didn’t seem viable, closed adoption does, in hindsight, look extreme.

It is a relatively unusual case because the child’s birth mother succeeded in an appeal heard in early December against a Family Court order that her 15-month-old son be placed for adoption. Although it is possible, in theory, for a birth parent to appeal against a placement order within a limited time period, she first needs to obtain permission to appeal and, if she gets permission, for the appeal court to decide that the judge was wrong.  Such a conclusion is, obviously, rare.  The successful appeal here meant that, after the care and placement orders were made (31 August), but before the child moved in with any potential adopters, his mother was able to persuade the Court of Appeal that the orders should be set aside, and replaced by an interim care order. The amount of contact between the mother and child has also been restored to its original level of three times a week (it was being reduced in light of the adoption plan). We don’t know whether the local authority has reverted to its original adoption plan (their application has now gone to a different Family Court judge) or is negotiating a different type of placement for the child. There is therefore no guarantee that this mother and son will be reunited permanently, but it is important to be able to see that, on occasion, there can be a realistic chance of appeal. The essential elements were whether adoption was necessary and proportionate to the risk of harm posed to the child.

Facts:

Peter Jackson LJ calls the child ‘Robbie’ (not his real name) in the judgment. Since 2015, Robbie’s mother (now in her early 30s) had been involved in a pattern of relationships with abusive men and consequent heavy drinking to cope. Under a supervision order,  from early 2018, she agreed with the local authority that her own mother would move in to help her look after Robbie, she would stop drinking, and she would not allow Robbie contact with his violent father. However, there were further incidents in breach of that agreement. An interim care order was made in May 2018; Robbie was moved to foster care and had contact three times a week with his mother. The grandmother had been assessed as unsuitable as the primary carer. Care and placement orders were made on 31 August 2018 in the Family Court by HHJ Vavrecka.  In September, the mother applied, in person, for permission to appeal; in early October, Jackson LJ gave permission and put the placement order on hold until the appeal. 

The arguments put forward on behalf of the mother (who had lawyers representing her at this point) included a list of the actions she was now taking to avoid the possible risks,  that she had asked for a three month adjournment to establish that those risks had abated, and that the judge had not carried out a proportionality test nor compared the advantages and disadvantages to Robbie between adoption and a care order with placement at home.

Court of Appeal analysis and decision:

1. An appeal court must be slow to interfere with the evaluation by a judge in the lower court who has heard the evidence directly, and the local authority (Hertfordshire CC) had acted correctly to protect the child. Robbie’s mother had disappointed professionals who were working with her, by flouting the agreement and lying about this. She had placed Robbie at risk of significant harm. Proceedings had already lasted 8 months when the care and placement orders were made.
2. However, the relationship between Robbie and his mother was good and there had been no complaints about her care of him for the 11 months he was in her care. She did not have mental health or alcohol dependency problems. Her drinking was ‘behavioural’ and ‘Until her late 20s she was functioning normally.’ [para 23]

3. Although HHJ Vavrecka had identified:

(1) The type of harm that might arise.

(2) The likelihood of it arising.

He did not sufficiently address:

(3) The consequences: what would be the likely severity of the harm to Robbie if it did come to pass?

(4) Risk reduction/mitigation: would the chances of harm happening be reduced or mitigated by the support services that are or could be made available?

(5) The comparative evaluation: in light of the above, how do the welfare advantages and disadvantages of Robbie growing up with his mother compare with those of adoption?

(6) Proportionality: ultimately, is adoption necessary and proportionate in this case?

Peter Jackson LJ concluded: ‘Lacking these components, the judge’s analysis did not in my view provide an adequate foundation for adoption in a case where the need for such a profound order is not immediately obvious.’ [para 2]

Comment:

Although the judgment is not lengthy, the factual chronology is detailed and therefore it’s not possible to simply map points arising in this case on to other proceedings to provide some sort of template for the correct balance to be drawn between risk and remedy. However, Jackson LJ’s summary in para 2 (above) might be helpful as a reminder of the balancing exercise in complex cases.

I think it is notable that the local authority plan (as described in the judgment) was for adoption with letterbox contact only, despite the good quality of the mother-child relationship and the Cafcass guardian quoted as follows:

‘She noted the secure attachment between mother and child, and the mother’s commitment to contact. She had no doubt that the mother dearly loves and is extremely proud of Robbie, and that he is a much-wanted baby. She described meticulous care given by the mother during contact sessions and remarked: “I worry about her emotional well-being if care and placement orders are made, and I do genuinely worry about how she will manage such a significant loss from her life.”[Para 11].

The guardian, however, concurred with the local authority plan.

It’s concerning that local authority social workers (which appears to have put a lot of effort in to supporting the family) and a conscientious guardian (all described as impressive witnesses in the lower court and not criticised by any judge) are so limited in the range of care plans they can recommend.  In particular, why it was envisaged that contact could not take place face-to-face in these circumstances?

Adoption can be the best decision for children who cannot be cared for within their birth family, and sometimes  letterbox contact (problematic as it is) may be the only appropriate arrangement, but cases such as this do raise questions about a lack of creativity and flexibility in meeting children’s needs.