CASE No LK12CO0333
IN THE LEICESTER COUNTY COURT
Before His Honour Judge Clifford Bellamy
(Judgment handed down 10th October 2013)
Re D-R (Children)
Mr William Tyler for the Local Authority
Miss Amanda Johnson for the mother
Miss Rachel Rowley for the father CD
Mrs Kathleen Hayter for the father KR
Mrs Margaret Robinson, solicitor for the children
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
1. Leicester City Council (‘the local authority’) applies to the court for care orders in respect of six children, Ian aged almost 8, David aged 5½, James aged 4, Sarah aged 3, Rachel aged 22 months and Peter aged 6 months (not the children’s real names). The local authority also applies for placement orders in respect of each of the five younger children.
2. The mother of all six children is HJ (‘the mother’). The father of Ian, David and James is CD. The father of Sarah, Rachel and Peter is KR.
3. On 4th July 2012 Sarah was taken to hospital by her father. She was found to have sustained a fracture to her left femur. At that time Ian was living with his father and David, James, Sarah and Rachel were living with the mother and KR. The family was already known to children’s services.
4. On 12th July 2012, the local authority issued these proceedings. Following a contested hearing, interim care orders were made in respect of the then five children. The children were placed in foster care.
5. A finding of fact hearing was held in order to investigate the circumstances surrounding Sarah’s injuries. In my judgment dated 5th February I concluded that:
‘151. The injury to Sarah was a serious injury. It would have required a significant degree of force. It would have caused very considerable pain. Sarah would have been very distressed. The mother and KR unreasonably delayed in seeking medical attention. They have not given a full and honest account of what happened. Neither of them has told me the whole truth. It is likely that one of them is covering up for the other. Whether or not that is so, I am satisfied that Sarah’s injury was non-accidental in origin and that the perpetrator was either the mother or KR. The inability to identify the perpetrator inevitably makes more difficult the task of risk assessment and child protection. Those, now, are issues for the welfare stage of these proceedings.
6. There was no appeal against those findings.
7. Those findings alone were sufficient to satisfy the threshold criteria set out in s.31(2) Children Act 1989. Other findings were subsequently agreed in relation to all three parents’ neglect of the children and their long history of drug abuse (cannabis). It is unnecessary for me to rehearse the particulars.
8. The mother and KR continue to deny any responsibility for causing Sarah’s injuries. Both of them deny personal responsibility and both refuse to accept that the other is responsible. Their position has not changed in the eight months since I gave judgment.
9. There has been a psychological assessment of the mother and KR by a very experienced Forensic Psychologist, Dr David Briggs. Dr Briggs reported in May. His conclusions were clear. He said,
‘I did not find either parent in this case to be particularly insightful as to the depth of concerns in this case…In my opinion there is a continued and highly significant risk of neglectful parenting (broadly defined) in this case. I believe the parenting capacities of both HJ and KR are compromised by virtue of earlier life experiences, including the quality of parenting they received and the role model of parental responsibility they were exposed to and also given their current psychological functioning…I worry that on occasions both parents will struggle to meet the emotional and psychological needs of these children, and that they will struggle to sustain high standards of care and attention to their needs. Furthermore, given the findings made, we cannot discount the risk of physically abusive parenting practices at times of strain…
This is a worrying case. I believe very high levels of intervention would be required if we were to be reassured that the children would be safe in their parents’ care…I do not have significant evidence to be reassured that the children will be safe (either collectively or singly) in their parents’ care without treatment and counselling. The outcome for treatment however is at best uncertain.’
10. In light of the guidance given by Black J (as she then was) in North Yorkshire County Council v. B  1 FLR page 1645, on 16 August I concluded that neither the mother nor KR is able to provide appropriate care for any of their respective children and therefore ruled them out as long-term carers. There has been no appeal against that decision.
11. A parenting assessment of CD was undertaken by a local authority assessment worker, Jackie Kincarr. In her conclusions, she said,
‘Throughout the assessment CD has attempted to manage the children’s behaviour. The key worker has given advice, demonstrated strategies and given hand-outs. CD has found this difficult to take on board. CD gets very emotional when the children do not listen to him and he wants the children to respect him. I’ve tried to explain to CD how he needs to be in control and consistent. CD tends to be at Ian and David’s level being confrontational most of the time and CD not knowing when to back away.
With constant support from the key worker CD has not been able to successfully manage the boys behaviour, he has not been in control of his own emotions and I feel this gets in the way for him to be able to focus on meeting the boys emotional needs before his own, this then prevents him from being able to be consistent with their behaviours.
I would have concerns that if CD was to have the care of the boys that he would not be able to manage their behaviour alone and prevent there being constant confrontations likely to lead to aggressive outbursts between both CD and the boys.’
12. The parents’ position at the beginning of this welfare hearing was that each accepts that there should be final care orders in respect of all six children. The parents concede that none of the children should be returned to their care. There are no potential kinship carers. In these circumstances, the ultimate outcome for each child must be either long-term foster care or adoption.
13. The local authority’s final care plans propose long-term foster care for Ian, a time-limited search for adoptive placements for David and James with the alternative of long-term foster care if that search is unsuccessful, and adoption for the three youngest children. The local authority also proposes that Sarah and Rachel should be placed together and that James and Peter should be placed separately. The plans for the younger five children are not agreed.
14. There are a number of issues which the court must resolve. Is adoption the right outcome for the youngest five children? If it is, how many adoptive placements should be sought and which children should be placed together? What inter-sibling contact is appropriate once the children are living in their final placements and, with respect to those children who are placed for adoption, should contact be voluntary (i.e. left to the discretion of the adopters) or should it be subject to an order of the court? What contact should the parents have with their children after they move into their final placements? These are the issues to which the remainder of this judgment relates.
Psychological assessment of the children
15. Julie Leather is a consultant clinical psychologist. She was instructed to undertake a psychological assessment of each of the older five children. Two discrete tasks were given to Ms Leather. Firstly, she was asked to consider the emotional, cognitive and social abilities of each of the children and express an opinion as to the cause or likely cause of any dysfunctionality. Secondly, she was asked to consider the children’s attachments with each other and their ability to attach to care-givers, including parents, each other and others in future and including in particular her opinion on placement configuration and post-placement contact. Notwithstanding that the guardian disagrees with some aspects of her report, Ms Leather was not required to attend for cross-examination. The only evidence I have from Ms Leather, therefore, is that set out in her written reports.
16. Prior to his placement in foster care Ian lived with his birth father, CD, though he had contact with his younger siblings almost daily. Since his removal from his father’s care Ian has had two foster placements. The first, for a period of around a month, was an emergency placement. His carers were unable to deal with his challenging behaviour and his emotional needs. At the guardian’s request, on 13 August 2012 Ian was moved to an alternative placement. His present placement has proved much more successful.
17. Ms Leather notes that when Ian was initially placed with his current carer,
‘there were a range of challenging behaviours including swearing, self-stimulation by touching his penis, resistance to bed-time, nightmares and night-terrors, bedwetting which appeared to be associated with the days when contact took place, and difficulties regulating his food intake, such that he would over-eat. He also told lies, would obviously confabulate and did not demonstrate affection…His social behaviour toward other children was poorly developed, when he went to school he made poor eye contact and there were reports of aggressive behaviour toward other children in school.’
18. Ms Leather undertook her assessment in June 2013 by which time Ian had been in his present placement for 10 months. She notes that he has made positive progress, that he responds well to boundaries, accepts discipline and was much less aggressive. He was attending school regularly, making good progress, particularly with his reading, and was achieving well. His behaviour at school was improving. He was taking pride in his appearance.
19. Ms Leather concludes that the most likely cause of Ian’s earlier behaviour was the poor boundaries and inappropriate models of care which he appears to have experienced prior to his reception into foster care.
20. Ian is very settled with his foster carer, Carole. She is his primary relationship figure and his key source of emotional support. Ms Leather says that she,
‘would suggest that Ian is thriving in his current placement and if this placement could be sustained for him this would provide an appropriate long-term placement for Ian. I think it likely that the level of commitment shown by his foster carer could lead to a more substantial commitment to his future in the event that the Court is minded to support this placement and if the needs of the other boys are met elsewhere…In the event that the other boys’ placements, including adoptive placements, would accommodate contact, then I would suggest that sibling contact should be prioritised...’
21. In an addendum report Ms Leather made clear her position on ongoing inter-sibling contact saying ‘I would wish to affirm that I do consider sibling contact to be a priority for Ian, James and David’.
22. David’s time in foster care has been much less settled than Ian’s. His first placement was for six weeks. James was placed with him. They then went into respite care for two weeks whilst their carers went on holiday. Their return to their first foster carers lasted for a month. David and James were then placed with Ian. For David and James, that placement broke down at the beginning of August 2013. David moved into a temporary placement for three weeks before moving to his present placement on 20 August.
23. Ms Leather reports that when in the care of the mother and KR, David’s teacher noted his very poor appearance in terms of his clothing and personal hygiene. Although there has been improvement since he was removed from his mother’s care his behaviour in foster care has been a cause of significant concern. Ms Leather notes that,
‘In the foster home there are major concerns regarding David’s behaviour. Behaviour ratings suggest severe behavioural difficulties of clinical significance in the areas of emotional difficulties, conduct difficulties and hyperactivity and inattentiveness. He shows poorly developed social skills…
His play-skills were poorly developed, his concentration was only 5 to 6 minutes duration on any single activity. He tended to break toys and was not constructive in his play. Play-skills remain problematic and he appears unable to share or take turns, particularly demonstrating these difficulties with co-operative play with respect to his brother James. He tends to follow his brother Ian and copies him.’
24. David’s behaviour towards James has been a cause of particular concern. Ms Leather notes that,
‘The foster carer has grave concerns regarding David’s behaviour towards James. He requires constant supervision and the boys have required separation at night as a response to aggressive behaviour. There will be regular instances of David pushing, kicking, hitting, punching James, he will snatch toys from him. Some of the behaviours appear to be impulsive in response to James having a toy that he wants or sitting close to Ian. Other behaviours appear more organised, including getting up in the night to punch his ears or trying to get James into trouble so that he will be sent to ‘time out’, so that David can monopolise Ian’s attention. Some of the described incidents have caused James injury including cutting his eye when he was hit with a cup, injuring his penis while he was in the bath and bruising his ears.’
25. Ms Leather concludes that David’s emotional needs were unmet when in the care of his mother and KR. His functioning indicates impoverished development and regression in response to his unmet needs. In her opinion David has substantial emotional needs and is likely to require a placement where his therapeutic needs can be understood and managed. She says that she,
‘would suggest that David has therapeutic needs surrounding attachment and he will require carers who are sensitive and receptive to these needs and can manage his needs and behaviour without feeling emotionally compromised themselves. I would suggest that David would benefit from a placement separate from both his siblings, where there is a male carer regularly available, to provide him with an appropriate role model and with whom he can form a meaningful and significant relationship. David would therefore benefit from a placement with a male and female carer who have experience of children and may have some older children in the family, or have experience of bringing up children previously. I would not suggest that David is placed with younger children.’
26. Ms Leather is equally clear about David’s contact needs. She says that,
‘In terms of contact, if an adoptive placement can accommodate contact, then I would suggest that David would benefit from maintaining direct involvement with his siblings on an infrequent basis, perhaps during some school holidays, to maintain these relationships for the future.
In the event that David’s needs cannot be met via adoption, then I would suggest that the issue of contact is similar to Ian.’
27. In her addendum report Ms Leather acknowledges that David’s emotional difficulties may make the chances of identifying a suitable adoptive placement ‘more of a challenge than would otherwise be the case’. Whether David is adopted or placed in long-term foster care he will need ‘some intervention with a focus upon attachment and unmet emotional needs’. She suggests the involvement of the CAMHS Looked After Team ‘to support adoptive parents or foster carers to understand David’s emotional needs from an attachment perspective, but also to support carers with appropriate behaviour management and advice’.
28. Until 2nd August 2013 James was in the same foster placements as David. From October 2010 until August 2013 Ian, David and James (full siblings) were in the same placement. When they left that placement on 2nd August David and James were placed separately. James has now been in his present foster placement for two months.
29. Ms Leather notes that at the time of her report James was making good progress in all areas of development. Although he is able to make positive social relationships with other children in school and enjoys adult attention he can also be emotionally needy. She says that James,
‘is a self-contained child who has learned somewhat avoidant behaviours probably in response to an environment where the parenting he received was often unavailable and where there appears to have been unpredictable, inconsistent and at times emotionally and physically dangerous responses including some direct experiences at the hands of his brother David. It is likely that this style of interaction is modelled upon and reflects the parenting he and David received when in the care of their mother and KR.’
30. Ms Leather expresses optimism that in the right placement, where his needs can be prioritised, James ‘has the potential for considerable development’. She appears to recommend that James should be placed for adoption but not with any of his siblings. She says that,
‘Whilst there may be scope for James to be placed with his brother Ian if long-term foster care was the appropriate option for him, I would suggest that James’s need for permanency could best be met via an adoptive placement and that this would be the most desirable long-term option for him. Therefore I would suggest a separate placement for James and as noted would suggest that some direct contact with Ian and David may be possible if adopters were amenable to this. However I would suggest that the priority focus should be upon the adoptive placement and finding carers whose focus can be upon James’s needs.’
31. As for the uncertainty to which I have just referred, that is clarified to an extent in Ms Leather’s addendum report. She was asked to comment on the possibility of James being placed with a sibling and in particular with Peter. She says,
‘I believe that James has the potential for adaptive patterns of attachment although he has clearly been subject to emotional harm and presents as a vulnerable child who is prone to anxious arousal in the form of separation anxiety and a vulnerability to stutter. He has also been exposed to a harmful sibling dynamic which has placed him at risk of physical harm…
The concern I might raise regarding the potential to place James and Peter together would be in finding a placement whereby James’s needs would be prioritised, and in particular finding a placement as soon as possible for carers who are motivated to respond to the needs of both Peter and James in light of their different developmental stages and the additional sensitivity which is likely to be required to manage James’s emotional needs.
I would not wish to suggest that this option is ruled out, as at face value it does present an option for James in being placed with his sibling, a relationship…which may develop in a care situation where good enough parenting is provided and where adaptive peer relationships can be promoted. However, I am well aware that there may be considerably more adoptive placements available to Peter on the basis of his infancy than for James, and would not wish to make a firm recommendation in this regard because of the potential barriers to achieving this option.’
32. Sarah has been in two foster placements since she was removed from her parents’ care. The first, described as an ‘initial emergency placement’ lasted for just over three months. It was terminated by the local authority upon the discovery of marks on Sarah’s face and body which the carer could not account for. On 31st October 2012 Sarah was moved to her present placement. Throughout the whole of her time in foster care Sarah has been placed separately from the remainder of her siblings.
33. Ms Leather notes that in many respects Sarah is doing well. She settled easily into her present placement. She is reaching her developmental milestones. However, Ms Leather notes that Sarah does not discriminate in seeking attention and does not show the normal degree of stranger anxiety; she expresses concern that Sarah does not discriminate in approaching men and women and would easily become engaged with an unfamiliar person. During supervised contact it has been noted that Sarah engages with the parents of other children at the contact venue.
34. In her opinion, Ms Leather says that,
‘Sarah’s presentation with regard to attachments suggests that there has been no key parent figure who has been able to meet her needs on a reliable, consistent and predictable basis. This appears to have delayed the development of primary attachments and her own indiscriminate behaviour reflects a home environment that is likely to have been chaotic with poor boundaries and routines, a lack of structure and where her physical and emotional needs were not met on a consistent basis by any primary care giver.’
35. Ms Leather is of the opinion that Sarah has the potential for normal social and emotional development. She agrees that adoption is the appropriate outcome for Sarah and says that an adoptive placement with Rachel ‘would be appropriate if this is possible and does not cause prolonged delay for either of the girls’. She suggests that post-adoption there should be indirect contact with their half-siblings which ‘would allow them to have knowledge and awareness of their siblings for the future when they reach adulthood’.
36. Rachel is the only one of the older five siblings to have remained in the same foster placement throughout her time in local authority care.
37. Ms Leather notes that at the time of Rachel’s reception into care there were signs of physical neglect including severe cradle cap. It seems probable that in her parents’ care she was under-stimulated and left on her own in a baby chair for long periods. Although she initially presented with obvious physical symptoms of neglect and was substantially developmentally delayed, she has made great strides whilst in foster care. Ms Leather notes that Rachel,
‘is now a bright, alert child, she has age-appropriate play-skills, she can focus and engage in purposeful activity. She listens to language, she imitates, she can string words together and will copy the verbalisations of others. She is showing basic symbolic play, she appears to be a happy child who engages well in parallel play as is age appropriate.
Rachel shows appropriate shyness and caution around strangers initially but will explore and engage once she is reassured by the behaviour of her carers. She is beginning to show signs of the ‘terrible twos’ but any temper outbursts are short lived and she is easily distracted. Behavioural ratings by her foster carer suggest that she has no behavioural difficulties of clinical significance and her social development is age-appropriate.’
38. Ms Leather agrees that adoption is the appropriate outcome for Rachel. She supports the possibility of seeking a single adoptive placement for Rachel and Sarah.
The local authority’s final care plans
39. The local authority’s final care plan for Ian is that he should be placed in long-term foster care. It is proposed that he should have contact with his parents six times a year during school holidays and direct contact with his siblings twice a year.
40. Ian’s present foster placement has proved to be an excellent placement for him. Both Ms Leather and the guardian are very clear that Ian’s best interests would be served by him remaining in this placement on a long-term basis. That is also what Ian wants. This possibility has recently become problematic. The foster carer is currently a local authority foster carer. She has indicated that she intends to become an agency foster carer with Jay Fostering, a Leicester-based Fostering Agency. This gives rise to three significant problems.
41. Firstly, the foster carer is not at present approved as a long-term foster carer. If she moves to work for Jay Fostering it will be the agency that will have to assess her suitability as a long-term foster carer, not the local authority. The timescale for that assessment is believed to be between 3 and 6 months.
42. Secondly, not only will the agency have responsibility for approving this foster carer as a long-term foster carer, it will also be responsible for determining the number of children she may have in placement at any one time. The allocated social worker, Paul Henry, says that he would be concerned if there were other children in placement.
43. Thirdly, if the foster carer becomes an agency foster carer then the local authority will have to agree a fee with the agency. It is likely that the cost will be greater than placement with one of the local authority’s own foster carers. There are, therefore, potential funding implications for the local authority.
44. Although all parties are agreed that long-term foster care is the right outcome for Ian, these three issues import a degree of uncertainty that is highly regrettable. The court can approve a care plan for long-term foster care. What it cannot do is to oversee the choice of foster carer.
45. In terms of securing a suitable long-term placement, as a result of his emotional and attachment difficulties and therapeutic needs David is the most problematic of all of these six children. The local authority’s plan is that he should, if possible, be placed for adoption. Mr Henry acknowledges that any couple adopting David would need to be resilient and strong.
46. Having taken account of the advice of Ms Leather it is proposed that David should not be placed with any of his siblings. Mr Henry said that the reason for considering adoption is that it would give the best chance for long-term security in which the focus could be on David’s needs. By comparison, long-term foster care would not offer the same level of security.
47. It is proposed that the search for an adoptive placement should be time-limited. If, after six months, a suitable adoptive placement has not been found then David should be placed in long-term foster care. In the event that an adoptive placement can be found then it is proposed that David should have indirect letter-box contact with his parents and direct contact with his siblings twice a year. If an adoptive placement cannot be found and David is placed in long-term foster care then the local authority proposes that he should have direct contact with his parents six times a year during school holidays.
48. Research suggests that David’s age (he is now 5½ years old) and his emotional difficulties are likely to make it difficult to find a suitable adoptive placement for him. The plan for direct inter-sibling contact is likely to compound the difficulty. Mr Henry acknowledged that it is likely to be very difficult to find an adoptive placement for David but that on balance it is ‘worth giving David the chance’.
49. It was with those difficulties in mind that I heard evidence from one of the local authority’s adoption social workers, Liz Bramley. Ms Bramley has been allocated as the family finder for David and his younger siblings. In terms of an adoptive placement Ms Bramley notes that David has quite distinct needs. He needs to be placed in a two-carer placement with experienced carers. He also needs to be the youngest (though not necessarily the only) child in placement.
50. There are no in-house matches currently available. The local authority would therefore have to look more widely. It will approach the East Midlands Consortium. There will be ongoing searches of the National Adoption Register. Consideration would also be given to advertising in a publication such as ‘Be My Parent’. Ms Bramley made the point that David would need a lot of preparation for and support during the adoption process.
51. I was concerned to have Ms Bramley’s professional assessment of the likelihood of being able to find a suitable adoptive placement for David. I asked for her assessment, on a scale of 0 to 10, of the prospects. She would not be drawn. She accepts that David will not be an easy child to place. She is sufficiently optimistic to believe that it is worth undertaking a search. Beyond that, she was not prepared to go.
52. The local authority accepts that ongoing sibling contact is important for all of these children. Mr Henry acknowledged that David looks forward to contact with his parents and that he has a good relationship with them. Of his siblings, David is particularly close towards Ian.
53. Ms Bramley accepts that the plan for twice a year direct inter-sibling contact is another complicating factor. As she put it, there will be adopters who “don’t want to go with inter-sibling contact, who are unnerved by it”. She said that in undertaking its search for suitable adopters for David and his younger siblings the local authority would prioritise those who are willing to agree to post adoption direct inter-sibling contact.
54. The local authority’s plan for James is that he, too, should be placed for adoption. James has been affected by David’s aggressive behaviour towards him. Having taken account of the advice of Ms Leather, it is proposed that, like David, James should be placed on his own. Mr Henry said that the need for James to be placed apart from his siblings was to assist with nurturing. James needs one to one attention to aid his development.
55. It is proposed that if an adoptive placement can be found James should have indirect letter-box contact with his parents once a year. In the event that an adoptive placement cannot be found then it is proposed that, like Ian, James should have direct contact with his parents six times a year. Mr Henry acknowledged that in his current placement James is missing his family. Whether adopted or placed in long-term foster care the local authority proposes that James should have direct contact with his siblings twice a year.
56. Though James is younger than David and his emotional needs not as great, the local authority nonetheless accepts that at his age there is no guarantee that a suitable adoptive placement can be found. The need to look for adopters willing to accept inter-sibling contact will be another limiting factor. It is for these reasons, therefore, that the search for an adoptive placement will be time-limited to six months. If no adoptive placement has been found within that time then the plan will be for long-term foster care.
Sarah and Rachel
57. The local authority proposes that Sarah be placed for adoption along with her sister, Rachel. Sarah and Rachel have a shared history of living together in the past, they have had weekly contact with each other whilst in foster care and have a good sisterly relationship. Although it is clear from Ms Leather’s evidence that, like her older siblings, Sarah, too, has suffered a degree of emotional harm whilst in the care of her parents, her needs are not such as to make placement with Rachel inappropriate. At their ages the local authority is optimistic about the prospects of finding a suitable joint placement.
58. The guardian’s opinion is that Sarah should be placed with James and Rachel with Peter. The local authority disagrees. Like James, Sarah has significant needs arising from the physical and emotional harm suffered whilst in her parents’ care. The local authority is of the opinion that if placed together it is uncertain ‘how their needs would play out’. Ms Bramley made the point that it is important to avoid the risk of either of these two children being left with any unmet needs.
59. The local authority proposes that Sarah and Rachel should have indirect letter-box contact with their parents and direct contact with their siblings twice a year.
60. Peter is the only one of these six children never to have lived with any of his siblings. He was born after these proceedings were issued and at a time when all of his siblings were in foster care. Peter was placed in foster care immediately upon discharge from hospital. He has remained in the same foster placement throughout. Having not been exposed to the deficient parenting suffered by his older siblings he does not bear the scars which, to a greater or lesser extent, have been borne by them. He is a normal, healthy, thriving six-month old baby.
61. The local authority’s plan for Peter is that he should be placed for adoption. The local authority has already undertaken a search of the National Adoption Register. No prospective adopters have been identified who would be a possible match for a sibling group of 3 children (Sarah, Rachel and Peter). It is therefore proposed that Peter be placed for adoption on his own. Given his age, the local authority is absolutely confident that a suitable adoptive placement can be identified quickly. Mr Henry was very clear that Peter needs permanency as soon as possible and that he should therefore be placed for adoption on his own.
62. Since birth, Peter has been included in the contact arrangements put in place by the local authority. He has had regular contact with his parents and with his siblings. Post adoption it is proposed that Peter should have annual indirect letter-box contact with his parents and direct contact with his siblings at least twice a year.
63. In cases involving sibling groups in which one child is placed for adoption and another placed in long-term foster care, and where the child in foster care is having direct contact with birth parents, it is often contended by a local authority that direct sibling contact is not appropriate because of the risk of the child in foster care passing on to the birth parents confidential information relating to the sibling in adoptive placement. That was the position of this local authority in earlier care plans. However, the local authority has now changed its position. In the care plans of each of the five younger children the local authority says that,
‘The Local Authority proposes that there will be direct contact between all of [the] siblings. It has to be recognised that as Ian will be having contact with his parents that consideration will need to be given to seeking an undertaking from parents that they will not seek to discuss with Ian any issues in relation to his siblings. The purpose of this undertaking will be to ensure that Ian is not placed in a situation where he becomes compromised and feels compelled to share information about his relationship with his siblings.’
Both parents are willing to give such an undertaking. Both Mr Henry and the children’s guardian are confident that the parents can be relied upon to honour their undertaking.
64. What is less clear is the extent of the local authority’s commitment to ensure ongoing direct inter-sibling contact. Mr Henry said that initially the local authority will look for adopters who are prepared to ‘take on board’ inter-sibling contact. However, if that search were unsuccessful he was vague as to what action (if any) the local authority may then take.
The children’s guardian
65. The children’s guardian (‘the guardian’) is Mrs Maggie Butcher. Mrs Butcher is a very experienced guardian. She was allocated to this case very soon after proceedings were issued. She has prepared two written reports, one within the care proceedings and one within the placement proceedings.
66. Mrs Butcher agrees with the local authority’s plan for long-term foster care for Ian. It was the guardian who prompted the local authority to move Ian on from his first foster placement which, in her opinion, was not providing Ian with the nurturing he needed. She acknowledges that Ian is very settled in his present placement and has made great strides. Although Ian would prefer to return to the care of his parents he is very clear that if that is not possible then he wants to remain in his present placement. He has formed a very strong attachment with his carer. The guardian says that Ian ‘is very settled with Carole and very proud of his achievements’. She speaks in glowing terms of the work carried out by Ian’s foster carer to help him ‘change his past behaviours and gain a greater sense of self worth’.
67. The guardian is in no doubt that it is in Ian’s best interests to remain in this placement. She is concerned – indeed, ‘dismayed’ would not be too strong a word – at the uncertainty surrounding the future of this placement and the apparent risk that Ian could be moved to an in-house local authority placement. She is in no doubt that such a move would be detrimental to his welfare interests.
68. The guardian supports the local authority’s plan for direct contact between Ian and his parents six times a year. So far as sibling contact is concerned, the guardian notes that Ian played a significant role as a young carer for David, James, Sarah and Rachel. He continues to have worries about their care and well-being. In the guardian’s opinion, ongoing sibling contact is very important for Ian.
69. The guardian agrees, on balance, that the local authority should pursue a time-limited plan of seeking an adoptive placement for David though she acknowledged that in his case it is a more difficult balance than for his younger siblings. He has greater needs than them, including therapeutic needs. Emotionally, he is very insecure. He has not yet settled in his current foster placement. Adoption, if it can be achieved, will give him a greater sense of belonging.
70. Given his age, his emotional difficulties and the importance of trying to maintain ongoing direct inter-sibling contact, the guardian accepts that finding a suitable adoptive placement for David is likely to prove exceedingly difficult. Indeed, she conceded that there is a high probability that David will remain in long-term foster care.
71. In light of the past extremes of his behaviour, particularly towards James, the guardian agrees that David should be placed on his own. For David, as well as for his siblings, the guardian regards ongoing inter-sibling contact as being more than simply desirable. In her opinion it is very important that these children should remain in direct contact with each other. In her final report in the care proceedings the guardian says that ‘Sibling contact is very important for children’s identity and a sense of belonging. These children have relationships which need to be nurtured and prioritised.’ In her report in the placement proceedings the guardian says that,
‘Amongst all the siblings it is Ian’s name that is mentioned the most by all of them. His relationship remains a significant one to the younger 4 siblings; Peter is too young to have developed a meaningful relationship with Ian.
Studies have found there is evidence that the presence of a sibling can ease a child’s adaptation in a number of stressful situations…and that sibling relationships frequently remain important sources of support through late adolescence, adulthood, and old age.’
72. Given the guardian’s views as to the importance of post-adoption direct inter-sibling contact, should that contact be left to the discretion of the adopters or should it be the subject of court order? The guardian acknowledges that orders for contact could well reduce the pool of potential adopters. She clearly found it difficult to say which she considered more important – finding adoptive placements or ensuring the continuation of direct inter-sibling contact. On balance (and it was clear that it is a very close balance), she said that finding adoptive placements for the younger five children is more important than maintaining direct contact between them.
73. The guardian describes James as ‘a sensitive little boy who seeks lots of affection and attention’. In her final report she notes that Ian’s foster carer is now asking for James to be returned to her care until an adoptive placement is found. James is unhappy in his new foster placement. He is missing his previous foster carer, Carole. He would like to return to her care. James has always had a brother in placement with him. Despite the high level of physical aggression he has suffered at the hands of David in the past, James has made it clear that he would rather be with David than on his own.
74. The guardian supports the local authority’s plan for a time limited search for an adoptive placement. Notwithstanding the views expressed by Ms Leather, the guardian says that James has a strong need to be with a sibling. She proposes that James be placed with Sarah. On that issue the mother and KR agree with the guardian.
Sarah, Rachel and Peter
75. The guardian describes Sarah as ‘a bright child who likes her own way; she likes to be in control and can get frustrated when unable to do what she chooses to do’. She describes Rachel as ‘a robust little girl who likes to explore her word and attracts lots of attention through her inquisitive personality’. Peter is described as ‘a very happy and contented baby’. So far as the two girls are concerned, they are both recovering from the impact of the poor quality of care they received whilst living with their parents.
76. The guardian supports the local authority’s plan that Sarah, Rachel and Peter should be placed for adoption. Each of them is too young to understand the decision about adoption. She proposes that Peter be placed with Rachel. Again, the mother and KR agree.
77. With respect to the plans for adoption for the younger five children, the guardian acknowledges that adoption ‘is an irrevocable severance of the legal family relationships between children and their birth relatives’. However, given the fact that, and the reasons why, none of these five children can be returned to the care of any of their birth parents, the importance of achieving permanency and long-term security for them outweighs those legal consequences. In her opinion long-term foster care would expose those children to an ongoing risk of placement breakdown. It would also mean that they would continue to have the status of looked after children and that they will always have a different surname to that of their carers, all of which exposes them to the risk of being stigmatised. In contrast, adoption would provide permanence and security
78. The finding that the threshold set by s.31(2) Children Act 1989 is satisfied in respect of all six children is the gateway to the making of orders in respect of each child. Within the care proceedings, in determining the right order to make in respect of each child the court must follow the approach set out in s.1.
79. Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In determining what is in a child’s best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provide that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make the order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child’s welfare. The court must also have regard to the Article 8 rights of each of these three parents and each of these six children and must endeavour to arrive at an outcome that is both proportionate and in each child’s best welfare interests.
80. These proceedings have been ongoing for more than a year. In my earlier judgment I set out the reasons why a finding of fact hearing which began in October 2012 did not complete until February 2013. The excessive length of time it has taken to get to this stage underscores the particular importance in this case of the requirement to have regard to the general principle, set out in s.1(2), that any delay in concluding these proceedings is likely to prejudice the welfare of these children.
81. With respect to the five younger children the local authority also seeks placement orders pursuant to s.21 Adoption and Children Act 2002. Section 22(1)(d) makes it clear that ‘A local authority must apply to the court for a placement order in respect of a child’ if it is ‘satisfied that the child ought to be placed for adoption’.
82. The court may only make a placement order if either the child’s parents consent to the order being made or if the court dispenses with the parents’ consent. Section 52 sets out the grounds upon which a court is entitled to dispense with parental consent:
(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—
(a) the parent or guardian cannot be found or is incapable of giving consent, or
(b) the welfare of the child requires the consent to be dispensed with.
83. When making a placement order or an adoption order the court is required to consider what, if any, contact the child should have with his birth family. So far as concerns applications for placement orders this issue is dealt with in sections 26 and 27 of the 2002 Act. With respect to adoption applications the position is dealt with in s.46.
84. So far as is material, s.26 provides that
(1) On an adoption agency being authorised to place a child for adoption, or placing a child for adoption who is less than six weeks old, any provision for contact under the 1989 Act ceases to have effect.
(2) While an adoption agency is so authorised or a child is placed for adoption—
(a) no application may be made for any provision for contact under that Act, but
(b) the court may make an order under this section requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for the person named in the order and the child otherwise to have contact with each other…
(4) When making a placement order, the court may on its own initiative make an order under this section.
(5) This section does not prevent an application for a contact order under section 8 of the 1989 Act being made where the application is to be heard together with an application for an adoption order in respect of the child.
Section 27 provides that:
(1) An order under section 26—
(a) has effect while the adoption agency is authorised to place the child for adoption or the child is placed for adoption, but
(b) may be varied or revoked by the court on an application by the child, the agency or a person named in the order…
(4) Before making a placement order the court must—
(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and
(b) invite the parties to the proceedings to comment on those arrangements.
(5) An order under section 26 may provide for contact on any conditions the court considers appropriate.
Section 46 provides that
(6) Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.
85. In determining whether to make a placement order, whether to dispense with parental consent and whether to make a contact order, the court’s approach must be as set out in s.1 of the 2002 Act. So far as is material, this provides that:
This sectionnoteType=Explanatory Notes has no associated
(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),
(b) the child’s particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.
(5) In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.
(6) The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
86. In addition to those statutory provisions the court must also have regard to the Art 8 rights of each of these three parents and of each of the five children in respect of whom placement orders are sought.
87. It is important also to have regard to those authorities in which guidance is given by the Senior Courts. In this case it is particularly important to have regard to the recent decision of the Court of Appeal in Re B-S (Children)  EWCA Civ 1146. The facts of that case are not relevant but the principles set out are highly relevant to the decisions I have to make. Those principles are to be found in the following passages:
‘17. Before proceeding any further, it is necessary for us to go back to first principles and to emphasise a number of essential considerations that judges must always have in mind, and we emphasise this, at every stage of the process. Regrettably, the continuing lack of attention to what has been said in previous judgments necessitates our use of plain, even strong, language.
18. We start with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is no need for us to go through the jurisprudence of the Strasbourg court. The relevant passages from three key decisions, K and T v Finland (2001) 36 EHRR 18, R and H v United Kingdom (2012) 54 EHRR 2,  2 FLR 1236, and YC v United Kingdom (2012) 55 EHRR 967, are set out by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33,  1 WLR 1911. The overarching principle remains as explained by Hale LJ, as she then was, in Re C and B  1 FLR 611, para 34:
“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”
“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”…
20. Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child "requires" this. "Require" here has the Strasbourg meaning of necessary, "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable": Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, paras 120, 125. This is a stringent and demanding test…
22. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.
23. Behind all this there lies the well-established principle, derived from s 1(5) of the 1989 Act, read in conjunction with s 1(3)(g), and now similarly embodied in s 1(6) of the 2002 Act, that the court should adopt the 'least interventionist' approach. As Hale J, as she then was, said in Re O (Care or Supervision Order)  2 FLR 755, 760:
“the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary.”…
26. First (Re B paras 77, 104), although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible.
27. Second (Re B para 77), as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision. As Lady Hale said (para 198) it is "necessary to explore and attempt alternative solutions". What are these options? That will depend upon the circumstances of the particular cases. They range, in principle, from the making of no order at one end of the spectrum to the making of an adoption order at the other. In between, there may be orders providing for the return of the child to the parent's care with the support of a family assistance order or subject to a supervision order or a care order; or the child may be placed with relatives under a residence order or a special guardianship order or in a foster placement under a care order; or the child may be placed with someone else, again under a residence order or a special guardianship order or in a foster placement under a care order. This is not an exhaustive list of the possibilities; wardship for example is another, as are placements in specialist residential or healthcare settings. Yet it can be seen that the possible list of options is long. We return to the implications of this below.
28. Third (Re B para 105), the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. So "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support." In this connection it is worth remembering what Hale LJ had said in Re O (Supervision Order)  EWCA Civ 16,  1 FLR 923, para 28:
“It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work, as indeed the framers of the Children Act 1989 always hoped that it would be made to work. The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully.”
That was said in the context of supervision orders but the point is of wider application…
34. …there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children)  EWCA Civ 1018, para 20, what is required is:
“evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.”
“An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options”.
“the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family”.
We agree with all of this…
“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.”
We need not quote the next paragraph in McFarlane LJ's judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.
44. We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):
“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”
88. Given the ‘striking’ language used by the Supreme Court in Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children) what, if any, are the consequences for the type of care plans this local authority advances in respect of David and James which propose a time-limited search for an adoptive placement with long-term foster care the fallback position if an adoptive placement cannot be found? For the local authority, Mr Tyler submits that this issue has already been determined by the decision of the Court of Appeal in Re P (A Child)  EWCA Civ 535 and that that decision is unaffected by Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children).
89. In this case one of the issues with which the court was concerned was the question whether the simultaneous search for both long-term foster placements and adoptive parents was a permissible use of the powers given to local authorities and adoption agencies under the Children Act 1989 and the Adoption and Children Act 2002. Giving the judgment of the court, Wall LJ (as he then was) said:
‘134. We have found this a much more difficult question. However, we have come to the conclusion that a combination of the tests identified in section 1(1) and 1(6) of the 2002 Act in particular (which must, of course, be considered within the framework of section 1 taken as a whole) justify the local authority's pragmatic approach to the question of the dual approach.
135. We accept Mr. Geekie's submission that there are very substantial differences - both philosophical and practical – between adoption and long term fostering. At the same time, we were struck by what we perceived to be the tensions within his primary submission that, in cases where adoption was the correct option, the search should, for a given period of time, be for an adoptive placement only; and it was only if that search failed that the agency should then seek a permanent foster placement.
136. Whilst the logic of this approach – given the philosophical differences between adoption and fostering referred to in the previous paragraph – is impeccable, it is, in our judgment, inappropriately purist, and may not in fact serve the best interests of the child concerned. It is, above all, sequential in its approach, and part of the thinking, as we understand it, behind the 2002 Act was to move away from the sequential planning approach which, under the 1976 Act, had led to substantial delay in the placement of children.
137. In our judgment, a local authority can be "satisfied that the child ought to be placed for adoption" within the meaning of section 22(1)(d) of the 2002 Act even though it recognises the reality that a search for adoptive parents may be unsuccessful and that, if it is, the alternative plan will have to be for long-term fostering. The wording, after all, is "ought to be" not "will be". That being so there can be no objection in principle to dual planning in appropriate cases.
138. There can moreover, be compelling pragmatic reasons for adopting dual planning in appropriate cases. In the first place it may shorten the period during which the child has to remain in limbo, a very important consideration particularly if the child is older or has already been in the care system too long. There is, in addition, the important point made by Miss Thirlwall. As experience shows, there are, even now the 2002 Act is in force, many prospective adopters who will come forward only if a placement order has been obtained. The experience of trial judges, as Munby J confirms, is that many local authorities believe, and seemingly with good basis for their belief, that a search for adoptive parents without the benefit of a placement order is a search within an artificially restricted pool. That cannot be for the benefit of the child.
139. In our judgment, there is also the important factor that adoption in England and Wales is, as we understand it, no longer largely about the adoption of babies but about children like D and S who are older, and who have had conscious experience of being parented by their birth mother and father. In the instant case, the effect of that parenting on both S and D has been seriously adverse. Placing a baby for adoption, by comparison, has none of the difficulties associated with the placement of D and S, and Mr. Geekie's sequential approach may well be appropriate for such a placement. Given the change which we have identified, however, we are satisfied that the local authority / agency approach to dual planning in the instant case, and in like cases, is permissible as a matter of welfare – see, in particular, sections 1(3), 1(4)(b) to (e) and section 1(6).
140. It follows, in our judgment, both that the local authority's dual planning approach for D and S is legitimate, and that the judge was entitled to embrace it. He was entitled, applying section 1 of the 2002 Act to take the view that adoption was in the best interests of both children, but that if suitable adoptive placements could not be found then the children should be placed, separately or together, in foster care. In our judgment, the reasoning process set out in paragraphs 52 to 64 of his judgment was properly open to him, and should not be disturbed by this court. It follows that the appeal must be dismissed.’
90. In the event that having completed that balancing exercise the court is persuaded that some of these six siblings should be placed for adoption, the next question which arises relates to the configuration of any adoptive placements. Which of these siblings should be placed together? This is an issue which arose in the case of Re S-C (Children)  EWCA Civ 1800. The Court of Appeal declined to give guidance on this issue. Giving the leading judgment, Baron J said,
‘5. The grounds of appeal also contemplate that this court should lay down general principles in relation to the way that sibling groups should be dealt with in the context of care proceedings. Speaking for myself, I would decline to make any pronouncements of a general nature because each case is unique and different on its facts. The court will always be required to provide bespoke solutions targeted on the needs of each particular child. Accordingly general guidance in this field would not be in point.’
91. There is one other important issue which arises in this case and that is to consider whether post-adoption direct inter-sibling contact should be entrusted to the willingness of the adopters or whether it should be underpinned by an order of the court. This is one of the issues considered by the Court of Appeal in Re P (A Child). Wall LJ said that,
‘151. On the facts of this case, there is a universal recognition that the relationship between D and S needs to be preserved. It is on this basis that the local authority/adoption agency is seeking the placement of the children. In our judgment, this means that the question of contact between the two children is not a matter for agreement between the local authority/adoption agency and the adopters: it is a matter which, ultimately, is for the court. It is the court which will have to make adoption orders or orders revoking the placement orders, and in our judgment it is the court which has the responsibility to make orders for contact if they are required in the interests of the two children…
153. …the judge's judgment is predicated on the proposition that the relationship between the two children is of fundamental importance, and that the relationship must be maintained, even if the children are placed in separate adoptive placements, or if one is adopted and the other fostered. In these circumstances it is not, in our judgment, a proper exercise of the judicial powers given to the court under the 2002 Act to leave contact between the children themselves, or between the children and their natural parents to the discretion of the local authority and/or the prospective carers of D and S, be they adoptive parents or foster carers. It is the court which must make the necessary decisions if contact between the siblings is in dispute, or if it is argued that it should cease for any reason.
154. We do not know if our views on contact on the facts of this particular case presage a more general sea change in post adoption contact overall. It seems to us, however, that the stakes in the present case are sufficiently high to make it appropriate for the court to retain control over the question of the children's welfare throughout their respective lives under sections 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post adoption in accordance with section 26 of the 2002 Act, under section 8 of the 1989 Act. This is what Parliament has enacted. In section 46(6) of the 2002 Act Parliament has specifically directed the court to consider post adoption contact, and in section 26(5) Parliament has specifically envisaged an application for contact being heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned.’
92. The written evidence in this case does not fully comply with the rigour to be expected in light of the decision of the Court of Appeal in Re B-S (Children). Although I have considered adjourning the case to enable the allocated social worker to file further evidence, I decided that it would be inappropriate for me to do so. In arriving at that conclusion I had three factors, in particular, in mind. Firstly, I was satisfied that the shortcomings in the written evidence could be made up in oral evidence. Secondly, given that the local authority has been represented by very experienced family counsel, I was satisfied that the required analysis was likely to be found (and was found) in counsel’s closing submissions. Thirdly, these proceedings were issued on 13th July 2012. These children have already waited too long for a decision on their future. It would not be proportionate, and neither would it be compliant with either s.1(2) Children Act 1989 or s.1(3) Adoption and Children Act 2002, for me to have adjourned this final hearing.
93. Having made that general point, and with the legal principles outlined above fully in mind, I turn to consider the appropriate welfare outcome for each of these six children.
94. Ian has told the guardian that he would like to return to the care of his parents. If that is not possible then he would wish to remain in the care of his present foster carer.
95. The parents accept that the local authority’s care plan of long-term foster care is appropriate. The guardian supports that plan.
96. The key issue for the guardian is the need to maintain Ian’s current foster placement. I noted earlier the uncertainties surrounding the future of this placement. Over that issue, I have no control. That does not mean that the court should not express a view. Indeed, in the circumstances of this case I am in no doubt that it is very important indeed that the court should express a view. My very firm view is that the local authority should take all reasonable steps to maintain this placement. Ian is settled there. To move him to a different placement runs the risk of unsettling and destabilising him. The risk is high and the consequences likely to be serious. Although I accept that this local authority, like most other local authorities, has resource difficulties I am in no doubt that it must be prepared to fund this placement even if, as seems likely, the foster carer moves to Jay Fostering. I expect the Independent Reviewing Officer to be proactive in seeking to achieve that outcome for Ian.
Is adoption the right outcome for any of the five younger children?
97. With respect to the five younger children, in the light of the evidence before the court and adopting the approach required by Re B-S (Children), my first task is to consider whether adoption is the right outcome for any of those children.
98. David is the most damaged of all of these children. It is clear from the evidence that even if the court were to approve the local authority’s plan to undertake a time-limited search for an adoptive placement the prospects of being able to find such a placement are at best uncertain. Realistically, in my judgment, the chances of finding such a placement are poor. Should an attempt be made?
99. Before approving the local authority’s plan the court must consider the arguments for and against each option. I am indebted to Mr Tyler for his very thorough written submissions and not least for his attempt to evaluate the arguments for and against adoption by means of a balance-sheet approach.
100. Mr Tyler identifies the following factors which point towards adoption as the appropriate outcome:
i That David would become – in law and fact – a member of a new family. This would bring both real security and, in an already troubled child, the sense of that security.
ii That David will continue to see his siblings at a minimum frequency of twice a year.
iii That membership of the new family is life-long. When he reaches the age of 18, rather than becoming a ‘care leaver’ and entitled to the (as Mr Tyler puts it) ‘often inadequate’ leaving care services, David would simply become an adult child of the family, entitled to expect the care, love, support and nurturing needed well beyond establishing the age of majority.
iv The fact that David has four younger siblings tends to distract from the fact that David is very young, just 5½. He deserves attempts being made to provide a ‘forever family’ in the true sense.
v Given David’s documented difficulties it is appropriate to anticipate that the task of providing for his care is likely to prove to be difficult and at times very challenging. The permanence of adoption is likely to create in the minds of the adopters an increased sense of commitment, a greater preparedness not to terminate the placement at times of stress, discord or other difficulties.
101. Mr Tyler then identifies the following arguments against adoption:
i That if adopted David would cease to be, in law and fact, a member of his birth family. He is attached both to his parents and to his siblings. He is particularly anxious to maintain his links with Ian.
ii That David wants to see his siblings and, in particular, Ian more frequently than twice a year. Additionally, if adopted David will not be able to have direct contact with his parents despite a clear desire to do so.
iii At 5½ David is at the upper end of the range usually associated with adoptive placement.
iv David’s documented difficulties render the risk of placement breakdown very real. The consequences of such a breakdown and in particular the associated sense of loss and rejection would be likely to cause David to suffer significant harm.
102. Mr Tyler goes on to examine the arguments for and against long-term foster care. He refers to the following factors in support of adoption:
i David would remain a member of his birth family, for whom he holds a strong sense of identity, while still being provided with appropriate nurturing care.
ii David will be able to continue to see his siblings, at a minimum frequency of twice per year. He will be able to see Ian more frequently. He wishes to be able to see his parents and would be able to do so.
iii David would not need to undergo the angst-ridden process endured by most adolescent children in adoptive placements of worrying about their birth family, facing the dilemma of wanting both to seek out birth parents and not to upset or betray adoptive parents.
103. Mr Tyler then sets out six arguments against long-term foster care:
i David’s relationship with Ian is not healthy. David’s seeing his parents on an ongoing basis is likely to prejudice his ability to settle into a new life.
ii At 18, David will cease to be a looked after child. He will be entitled only to statutory leaving care services. He will have no new relatives, simply his parents and Ian (assuming the adoption of his younger siblings). There is nothing to suggest that his parents – even in 13 years’ time – will be in a position to meet his needs as a young adult for appropriate support, guidance, advice etc.
iii The risk of placement breakdown at the point of sustained difficulties is greater in long-term foster care.
iv In long-term foster care the risk of placement change due to retirement of carer, change of ‘career choice’, registering with a new agency, the needs of other foster children would be ever-present.
v In long-term foster care, as a looked after child David will be subject – for well over a decade – to all the indignities which accompany the status of being a looked after child: the LAC reviews, standing out at school by having a different surname to his carers, the ever-present presence of social services.
vi In long-term foster care, David is likely to hold out hopes of reunification with his birth family in circumstances where there is no suggestion that the relevant adults will attain the capacity to care for him appropriately.
104. Mr Tyler submits that the balance ‘comes down clearly and by a wide margin in favour of seeking to attain for David the “gold standard” of a secure, adoptive placement’. I don’t accept that to be the case. Whilst I do not disagree with the factors Mr Tyler proposes should be weighed in the adoption balance, in my judgment the balance is at best even. The local authority’s acknowledgement of the importance to David of contact with his siblings (a factor which, in accordance with s.1(4)(f)(i) the court is bound to consider in evaluating David’s welfare interests), its acknowledgement that the need for sibling contact may well impede the search for an adoptive placement and the impact of David’s emotional difficulties all weigh heavily against the plus factors identified in support of adoption.
105. Although Mr Tyler identifies only two factors in support of fostering compared with six factors against, in my judgment the weight of the competing factors means that the balance is closer than appears. I am nonetheless prepared to accept that the weight of the factors which point against long-term foster care marginally outweigh the factors which point in favour.
106. In the light of that balancing exercise it is difficult to see how it could properly be said that nothing else but adoption will do, that no other course is possible in David’s interests, that there are overriding requirements pertaining to David’s welfare which make it clear that nothing but adoption will do. When one adds to that the real and significant doubts about the deliverability of the plan for adoption for David and when one also takes account of the provisions of s.1(6) of the 2002 Act, the outcome in my judgment is clear. The plan to engage in a time-limited search for an adoptive placement is not appropriate.
107. On the facts of this case I am not persuaded that adoption is the appropriate outcome for David. It is not the least interventionist option consistent with his needs. I shall, therefore, dismiss the application for a placement order and approve the local authority’s alternative care plan of long-term foster care.
108. James has also suffered emotional harm as a result of the poor parenting he has received. At 4 years of age the prospects of finding an adoptive placement for James are already beginning to diminish. When one takes account of the emotional harm he has suffered and the need to try to find an adoptive placement that will support ongoing direct inter-sibling contact, the prospects of finding an adoptive placement for him are less than optimal. Nonetheless, I accept that the prospects of finding an adoptive placement for James are better than for David.
109. Mr Tyler has undertaken a separate balance sheet analysis jointly for James, Sarah, Rachel and Peter. In favour of adoption Mr Tyler again relies on what in essence are the points made at paragraph 100 above. Additionally he makes the point that at ages ranging from 6 months to 4 years these four children are ‘well within the usual age range for adoption’. Against adoption, Mr Tyler makes points similar to those set out at paragraph 101 above. Additionally, he makes the point that it is possible that the permutations of placement of the siblings for adoption allow for fewer siblings to be together than would be in the case of foster care.
110. With respect to the alternative of foster care, Mr Tyler makes similar points to those raised in support of and against long-term foster care for David.
111. On behalf of the local authority, Mr Tyler submits that it is clear from his analysis that ‘the net benefits (i.e. taking into full account the negative factors) to each of the four younger children of adoption far outweigh those of long-term foster care’.
112. So far as James is concerned, although Mr Tyler’s analysis relies upon similar factors to be weighed on either side of the balance, those factors do not necessarily carry the same weight. The fact that James is 18 months younger than David together with the fact that he does not appear to have suffered the same level of emotional harm persuade me that so far as the adoption balance is concerned it comes down in favour of adoption. As with David, I am satisfied that the foster care balance comes down, narrowly, against foster care. In those circumstances, the evaluation of adoption as against long-term foster care suggests that the balance comes down in favour of adoption.
113. That, though, is not the end of the matter. There may be a more fundamental reason for rejecting adoption as the long-term outcome for David. As the Court of Appeal acknowledged in Re B-S (Children), the language used by the Supreme Court in In Re B (A Child)(Care Proceedings: Threshold Criteria) is striking. Adoption is ‘a very extreme thing, a last resort’ only to be made where ‘nothing else will do’, where ‘no other course is possible in [the child’s] interests’. Care plans proposing a time-limited search for an adoptive placement for a child with long-term foster care as the alternative are not uncommon. With respect to such a care plan, how can it be said that ‘no other course is possible in the child’s interests’ or that ‘nothing else will do’ in circumstances where the local authority itself proposes long-term foster care if a brief (in this case six months) search for an adoptive placement is unsuccessful?
114. I referred earlier to the decision of the Court of Appeal in Re P (A Child). Mr Tyler submits that Re P (A Child) emerges from Re B-S (Children)
‘not only unscathed but positively reinforced. The President approvingly refers to the judgment noting that it enshrines “a stringent and demanding test”’
I don’t wholly accept that point. When one looks at the context in which the President used those words one finds that he was talking about the approach taken in Re P (A Child) to the interpretation of the word ‘requires’ as it appears in s.52(1)(b) and not to the court’s comments on the policy of the local authority/adoption agency to engage in dual planning.
115. If the consequence of the language used in Re B (A Child)(Care Proceedings: Threshold Criteria) is that dual planning is no longer permissible then the impact on local authority care planning will be profound. In the absence of a clear indication from the appellate courts that on this issue the guidance given in Re P (A Child) is no longer to be followed, I consider myself bound by it. Notwithstanding the unease I have expressed, having conducted the required balancing exercise I am satisfied that the local authority’s final care plan for James is proportionate and (in the context of both s.1(1) Children Act 1989 and s.1(2) Adoption and Children Act 2002) in his best welfare interests.
Sarah, Rachel and Peter
116. The position concerning Sarah, Rachel and Peter is, in my judgment, very different to that of their older brothers. In their case the local authority’s final care plan is for adoption. There is no alternative plan of long-term foster care. I am in no doubt that the balance comes down in favour of adoption and against foster care. These three very young children can never return to the care of their parents. They are quite simply unable to meet their needs. I am satisfied that in their case nothing else but adoption will do. Adoption is the only outcome which will meet all of their needs, not least their need to grow up with carers who love them, who have the ability to nurture and cherish them, who will be able to be their ‘forever’ family not just to the age of 18 but throughout their lives.
Should the parents’ consent be dispensed with?
117. It is clear from the authorities to which I have referred that the word ‘requires’ as it appears in s.52(1)(b) has the meaning of necessary, the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable. In circumstances where the court has found that nothing else but adoption will do, that there is no other course possible in the child’s interests, it seems to me that save in the most exceptional circumstances it is bound to follow that the court must come to the conclusion that the child’s welfare requires the parent’s consent to be dispensed with.
118. In this case the mother neither opposes nor consents to the making of placement orders. CD opposes the making of a placement order in respect of David but neither opposes nor consents to the making of a placement order in respect of James. KR opposes the making of placement orders for Sarah, Rachel and Peter contending that they should be placed in long-term foster care. With respect to the placement applications in respect of each of the four younger children, for the reasons I have given I am satisfied that their welfare requires that their parents’ consent should be dispensed with and that placement orders should be made.
Which of these children should be placed together?
119. The local authority proposes that three separate adoptive placements be identified, one for James, one for Sarah and Rachel and one for Peter. The guardian, supported by the parents, is of the opinion that it would be more appropriate to seek two placements, one for James and Sarah and one for Rachel and Peter.
120. The guardian is concerned that at that moment these six children are in six different foster placements. She is concerned that that should not be carried through into their long-term placements. Whilst I understand her concerns it remains the case that the court must seek to find the best welfare outcome for each individual child. The importance of seeking to keep siblings together is an issue the court must keep in mind, though it is not an overriding issue of principle.
121. The guardian herself acknowledges that Sarah is a child who likes her own way, who likes to be in control and who gets frustrated when unable to do what she chooses to do. She also acknowledges that James is ‘a sensitive little boy who seeks lots of affection and attention’. There are obvious risks in placing these two children together. Ms Leather made the point that James needs to be in a placement ‘where his needs can be prioritised’. She was asked to advise on the possibility of placing James and Peter together. She was not wholly supportive. She was not asked to advise on the possibility of placing James and Sarah together. However, the tenor of her advice about placement of James and Peter together leads me to the conclusion that it is unlikely she would have supported placement of James and Sarah together. James gravitates more towards his older full siblings than towards his younger half siblings. I agree with the local authority’s final care plan for James that he should be placed on his own.
122. What, then, of Sarah, Rachel and Peter? In her placement report the guardian says that ‘Ideally Sarah, Rachel and Peter should be found an adoptive placement together’. She then goes on to say that ‘in the present climate this is not a realistic outcome’ and therefore on balance she supports Peter and Rachel being placed together.
123. Ms Leather supports placement of Sarah and Rachel together. Sarah, Rachel and Peter are full siblings. I agree with the guardian’s instinct that placement of these three children together would be the ideal. The need for ongoing direct inter-sibling contact may be positively assisted by these three children being placed together. In my judgment the local authority should undertake a search for a single placement for these three children, at least for a limited period (no more than six months). If unsuccessful then Peter should be placed on his own and, if possible, Sarah and Rachel should be placed together.
124. It is clear that ongoing direct inter-sibling contact is very important to all of these children. Mr Tyler seeks to persuade me that contact orders should not be made. In support he relies on comments made by Millett LJ and Butler-Sloss LJ in Re T (Adoption: Contact)  2 FLR 251 to the effect that willing adopters should not be bound by mandatory orders. That decision was made several years before the passing of the Adoption and Children Act 2002. More relevant, in my judgment, are the comments made by the Court of Appeal in Re P (A Child) to which I referred earlier. Wall LJ said that the court’s analysis ‘leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned’.
125. In this case the evidence in support of the need for ongoing direct inter-sibling contact is very strong. Although, if she had to choose between the two, the guardian said that she would choose the importance of securing adoptive placements above the need to ensure ongoing contact, it was clear that she agonised over that decision and that in her mind the decision was marginal. I am satisfied that it is appropriate that for James, Sarah, Rachel and Peter I should make contact orders under s.26(2) of the 2002 Act reflecting the local authority’s plans for continuing direct inter-sibling contact, both contact between the four children in respect of whom I am making placement orders and contact between those four children, Ian and David.
126. In summary, I make final care orders in respect of all six children. I approve the care plan of long-term foster care for Ian; I approve the alternative plan of long-term foster care for David; I approve the plan for a time-limited search for an adoptive placement for James with long-term foster care as the alternative if that search is unfruitful; and I approve the care plans for adoption for Sarah, Rachel and Peter. With respect to each of the younger four children I make placement orders and dispense with the consent of the parents to the making of those orders. As for the configuration of adoptive placements, James should be placed on his own. There should be a time-limited search for a single adoptive placement for Sarah and Rachel and Peter. If unsuccessful, Peter should be placed on his own and attempts made to place Sarah and Rachel together. I shall make contact orders in respect of the four younger children pursuant to s.26 of the 2002 Act. If and when adoption applications are made I direct that they be reserved to me.