IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: EF13C00628
IN THE RHYL COUNTY COURT

IN THE MATTER OF THE CHILDREN ACT 1989 and
THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF J AND M (CHILDREN)

Date: 12th February 2014

Before :

HIS HONOUR JUDGE GARETH JONES

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Between :

	Flintshire County Council	Applicant	
	- and -		
	    Mrs LD(1)
-and-
    Mr GJ(2)	

Respondents	
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Mr Michael Sellars of Counsel (instructed by Flintshire County Council) for the Applicant Local Authority
Miss Sheren Guirguis of Counsel (instructed by Messrs Llewellyn Jones, Mold, CH7 1EJ) for the First Respondent
Mr Matthew Corbett-Jones of Counsel (instructed by Messrs Griffith Hughes Parry, Holywell, CH8 7RD) for the Second Respondent
Miss Debbie Owens, Solicitor (instructed by Messrs Humphrys & Co, Wrexham LL13 8BG) for the Children’s Guardian

Hearing dates: 10th – 12th February 2014
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APPROVED JUDGMENT
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JUDGMENT	12th February 2013
HIS HONOUR JUDGE GARETH JONES:
1.	I have before me applications for Care Orders and Placement Orders in the case of two sibling children, JaKD born on [a date in] July 2010, three and a half years of age; and MJD born on [a date in]  December 2012, and therefore fourteen months of age.
2.	The Applicant Local Authority is Flintshire County Council represented by Mr Sellars.  The mother Mrs LD is represented by Miss Guirguis; the father Mr GJ is represented by Mr Corbett-Jones, and both parents are in Court today.  The Guardian is Jane Greening and she is represented by Miss Owens.
3.	The hearing began on Monday 10th February 2014, it continued yesterday 11th February 2014 and concludes today, Wednesday 12th February 2014. 
4.	I have heard oral evidence from the Key Social Worker Miss Brigid Gribbin, Dr Ward a Consultant Paediatrician gave evidence by video-conferencing link, and I have heard evidence also from the Guardian in this case.  The mother and father decided not to give oral evidence.  However, I have before me the statements from the parties, reports and other key documents which have been considered by me.
The background
5.	These applications relating to Ja and M were part of a wider number of applications concerning in total five children of this family.  The proceedings started in August 2013 and in the case of the other three older half-siblings (that is Jo, fifteen, S thirteen and K five) I made Residence Orders on 24th January 2014 in favour of their birth father Mr D and his partner, coupled with Supervision Orders for a period of twelve months.  Additionally, provision was made for maternal contact in relation to those older children.
6.	I found that the threshold criteria for making those Supervision Orders had been established on the basis of paragraph 3 and paragraph 4 of the Local Authority’s Threshold Document which was dated 14th August 2013, coupled with an additional finding that the children’s educational/social development was likely to be impaired by the mother’s failure to secure their school attendance.
7.	In January 2014, the Local Authority were permitted to keep open their findings in relation to M and Ja.  The Local Authority’s Final Care Plans for M and Ja (see Section C) proposes placement for both children outside the birth family by way of adoption.  This would be a closed adoption in relation to the parents and the older siblings; i.e. there would be no face-to-face contact, only Agency letterbox contact.  The current inter-sibling and parental contact would be tapered and eventually it would come to an end.  The Local Authority would strive to locate adopters for both children together, but if this could not be achieved they would pursue separate placements while promoting inter-sibling face-to-face contact between M and Ja if they were to be separately adopted.
8.	The mother and the father opposed the Local Authority’s Plans for M and Ja initially and as recently as the Issues Resolution Hearing in January 2014 they sought rehabilitation of both children to their care.  The parents while maintaining separate addresses, presently cohabit for much of the time.  At the outset of this hearing, however, the parents acknowledged the inevitable and they accepted that they could not offer M and Ja the standard of care which both of these children require.
9.	There is no other suitable familial carer in the extended family which has been identified in this case.
10.	Accordingly, the parents contend for long-term foster care for the children together, while maintaining face-to-face familial contact at a monthly frequency ideally (from their point of view), including of course wider inter-sibling contact with the older children.
11.	The mother has made significant concessions with regard to the threshold findings (see D101) and both parents accept that the threshold is established in this case.  The Local Authority has always maintained that the parents have been neglectful in their care of M and Ja prior to their removal from parental care last year.  In particular, it is alleged that the children suffered from a chronic lack of stimulation and that their medical/physical care was neglected.  These allegations were refuted by the parents to some degree in whole or in part.
12.	If the parents were pursuing a case for rehabilitation at this hearing, then it would have been necessary to reach an adjudication upon these particular aspects.  However, in a case where firstly, the parents have accepted that the threshold is met, secondly, have made significant concessions in respect of the threshold, and thirdly rule themselves out as familial carers and accept that the choice of placement for these children lies between long-term foster care and adoption, it is, in my judgment, unnecessary to reach a determination about all the Local Authority’s findings.  So far as the parents and the Guardian are concerned, they do not urge me to take a different position.
13.	Accordingly, on the balance of probabilities I find the threshold to be established on the basis of the findings made by me on 24th January 2014, supplemented by the concessions contained in the mother’s position statement (see D101).  In other respects, I make no findings about the Local Authority’s Threshold Document and the findings remain open.  The parents have given no evidence about these aspects.  There is medical evidence in the papers about these matters.  I have not dismissed the allegations nor have I found them to be proven.  No determination has been made about them one way or the other.
14.	The Guardian in her final report supports the Local Authority’s Plans for the children but she acknowledges that the issue is a finely balanced one.  In her oral evidence to me yesterday, the Guardian said that there was no right or wrong answer.  There were pros and cons for each option and she said:
“I have gone full circle at certain stages during the hearing.  I’ve thought different things”.
15.	The children continue to live with their foster carers (who I shall identify as L and G) and their own three children who are eight, eleven and thirteen respectively.  L is a qualified nurse and M and Ja have been provided (it is commonly accepted by all parties in this case) with a very high standard of care indeed.  The parents continue to exercise frequent contact with the children three times a week and the quality of that contact from the contact records (see Section I) appears to be generally satisfactory.  The parents attend regularly and for the limited periods of contact they manage to interact with and entertain the children reasonably well.
16.	The children also have contact of course with their older half-siblings and there is a particularly close bond (it is accepted) between S and M.
17.	M and Ja have been the subject of Interim Care Orders since 14th August 2013 and they have been placed (as I have said already) with the same foster carers.  The case was transferred to the County Court and timetabled for this hearing.
18.	I need not dwell upon the parental shortcomings since they are identified in the Threshold Document prepared by the mother.  There have been historic concerns dating back to at least 2004 about parental care.  M after her birth did not thrive and she was re-admitted to hospital on several occasions because of concerns about her weight and general development.  There was a Child Protection registration on 13th June 2013 and thereafter a further hospital admission for M on 21st June 2013.  Initially, M was accommodated by foster carers after her discharge from hospital, and this arrangement was formalised after the inception of protective proceedings in August 2013.  The Guardian (as I have said) has observed that the placement options for M and Ja are finely balanced and at the heart of this issue lies the substantial identified needs of both children.
The children’s medical reports
19.	I have three sources of medical information about these children (see Section E).  I have reports by Dr Phillips and Dr Ward on M and Ja respectively.  I also have available to me a recent update, namely the pre-adoption medical examinations undertaken by Dr Bos.
20.	Having regard to the concessions made with regard to threshold, I wish to concentrate upon the underlying medical concerns about these children rather than make further reference to the sections of the reports which are critical of past parental care.
21.	Historically in relation to M there were concerns about:
(i)	her faltering growth;
(ii)	eczema;
(iii)	a marked plagiocephaly; that is to say a flattening of one side of the head and torticollis (a twisted neck);
(iv)	developmental delay and in particular gross motor delay; and
(v)	a deviation (squint) of the left eye and possibly also of her right eye.
22.	Both children were small at birth; the mother I note is quite petite in appearance, the father is not.
23.	Since her admission into foster care, M has received (as I have said already) care of an exceptionally high standard and she has made progress.  She has gained weight, her movement has improved, the plagiocephaly is less noticeable and the range of movement in the neck has also improved, although her posture is affected by a tendency for the head to be angulated to the right.  That at least was the position in December 2013.  The eczema had cleared up by that time.
24.	Ja is a complex child; there is no overarching diagnosis and his difficulties are considered to be multi-factorial in origin with biological and environmental components.  Dr Ward’s assessments in November 2013 proceeds in the following way:
“Ja presented as a slightly dysmorphic child with … significant global delay [and] with particular difficulties in the areas of social interaction, communication and play.” [E56]
He had also demonstrated aversive feeding (E56).  Physically, J appeared to be reasonably well.
25.	When Ja came into foster care (see E53):
“It was three to four weeks before eye contact was made.  He did not respond to voice and did not acknowledge M or anyone else.  He did not turn when his name was called.  … However, gradually his interaction improved and he now demonstrates an excellent relationship with his carer.  He goes for a cuddle, holds her hand and initiates interaction.  He enjoys playing with toys.”
There are concerns that Ja may be short-sighted and a follow-up ophthalmic appointment is awaited.  His dental health was poor largely because of his diet of sugary milkshakes and baby food whereby he developed an aversive feeding pattern and a dislike of some food textures.
26.	Ja continues to attend Special School [name of school given] and there is information about his progress there (see E54).
“Staff at school had expressed concern that Ja exhibited repetitive behaviour.  He was seen to peer through cracks in the door.  He liked being in a cardboard box and repetitively felt around the edges.  However staff at school have seen a huge difference in his behaviour and he is now making progress both socially and academically.  He is beginning to use his hands to paint; previously he was averse to messy play.”
27.	In relation to his gross motor development (E54):
“Ja was walking when he became Looked After but was unsteady when he arrived.  He kept falling over the door threshold.  His mobility has improved but he still has difficulty in coping with slopes and kerbs.  He tends to climb up the slide and crawls upstairs on his knees.  He walks hand-held.  He comes down the stairs on his bottom or is hand-held.  He is not yet able to kick a ball or peddle a trike.  Overall his gross motor development is at around a fifteen month level.  He is able to rise to standing from sitting on the floor.  He was seen bottom shuffling at times although he is able to walk.  He has low central tone.”
I observe that with a developmental level assessed at around fifteen months, that is of course less than one half of Ja’s chronological age.  So far as his fine motor development is concerned, those skills are assessed at the twelve month level.
28.	With regard to his language and communication skills (see E55):
“Ja was initially quite silent and then started to vocalise loudly.  The foster carer stated that he had no recognisable words used purposefully but makes lots of sounds.  He has double babble and waves and claps.  When he is excited he flaps his hands.  He also flaps his hands when singing songs such as ‘Wheels on the Bus’.  He loves interactive games and is beginning to join in nursery rhymes such as ‘Row, Row, Row the Boat’.  Language and communication skills are still below and twelve month level.”
29.	In relation to his self-care skills:
“He drinks from a lidded beaker (initially a bottle).  However, he no longer feeds from a bottle and uses a doidy cup.  He has also progressed to a normal cup although he tends to spill a lot.  He is not yet toilet trained and he is still in nappies.  In the course of the assessment, Ja was seen rocking.  This tends to be worse at bedtime.  His carer stated that he initially rocked constantly and on occasions rocked from the bed onto the floor.  He also tapped objects constantly.  Ja likes the colour red and is attracted to objects such as fire extinguishers.  He likes to hide under a blanket and pulls a blanket over his head.  On his first night in care he slept on the floor.  However, he now sleeps happily in a bed.  He takes a long time to settle to sleep, taking up to an hour and a half.  However, he is content in bed and does not cry.  He is happy touching the walls.  He is now beginning to come out of his room at night like a normal toddler.  He occasionally bangs his head repetitively on the bed-frame.  He enjoys lights and things that flash.  He enjoys ‘cause and effect’ toys and an iPod.  His play is not obviously obsessive or repetitive and is now more exploratory.”
30.	According to Dr Ward (see E59), Ja remains a child:
“… with significant delay in all areas of development including gross and fine motor development, play skills and cognitive function, speech and language development and self-care skills.”
31.	There is a discussion of the possibility of Foetal Alcohol Spectrum Disorder in Dr Ward’s report (see E60).  This is not medically excluded, despite the mother’s denial of alcohol misuse.  Cognitive development is of course a reflection of biological and environmental factors and developmental difficulties are often multi-factorial.  Congenital factors have resulted in a vulnerable child whose difficulties have been exaggerated by inadequate parental care (see E61).  Dr Ward’s view is:
“Ja has very significant developmental delay and is likely to continue to have needs significantly above his peers in terms of cognition, communication and care throughout his childhood and into adult life”.
32.	Concern has been expressed about certain autistic behaviours, but this will require a further assessment of his social interaction, communication and social imagination and repetitive/obsessional behaviour.
33.	His needs are considered at pages E64 to E65:
“Ja needs more than ‘good enough’ care by carers who are able to accept the uncertainties of his prognosis and the complexity of his condition.  Ja needs to experience consistent care and routine, and insightful care by carers who are able to understand his difficulties in understanding the world around him and the impact of sensory issues.  Ja needs good levels of stimulation, an appreciation of using non-verbal communication, encouragement of play, self-care and social interaction.  It is essential that carers are able to work in partnership with professionals in Health, Education and Social Care to ensure that his needs are met.  In health terms Ja needs the following:
(i)	input of multi-disciplinary team to address his developmental needs;
(ii)	community paediatrician – a paediatrician would monitor his general health and growth and act as a co-ordinator of general health and therapeutic input;
(iii)	speech and language therapist to address language, communication and feeding difficulties;
(iv)	physiotherapist – Ja is able to walk independently, but motor coordination is immature;
(v)	occupational therapist input regarding his fine motor and self-care needs;
(vi)	early years specialists focusing on play and cognitive development;
(vii)	Ja has special educational needs and an assessment of his future needs and education should take place;
(viii)	ear nose and throat; Ja has a tendency to snore and some upper airways obstruction.  He requires assessment by an ENT specialist to check for adenoidal and tonsilar hypertrophy.  Hearing has been checked and found to be satisfactory;
(ix)	ophthalmology – Ja has seen an orthoptist and optician; he is thought to be short-sighted but it is difficult to test him at his stage.  Testing should be repeated as he becomes older;
(x)	orthopaedic surgeon – review of a shallow acetabulum to exclude hip dysplasia/risk of dislocation;
(xi)	dietician - support the carers and guidance regarding adequacy of diet.  Ja currently receives one carton of Paedisure per day to supplement.  This will require review;
(xii)	input in a joint feeding clinic would be helpful to carers to address his feeding problem;
(xiii)	genetics – it may be helpful for Ja to see a geneticist.  I have referred to recent developments in genetic testing including the microarray test which may be appropriate in his case; and
(xiv)	Ja may benefit from input from a clinical psychologist with an interest in children with special educational needs and difficulties with social interaction to help him make sense of his life experiences.”
34.	This high level of care at home and significant support in the classroom and with his health generally, will be required throughout his childhood and into adult life (E66).   It is said on behalf of the Local Authority that this package of care (whilst available locally) could be replicated at other centres within England and Wales by way of health/educational provision.
35.	The recent updates by Dr Bos on both of these children underline the particular needs of the children.  So far as Ja is concerned:
“Ja was seen by Dr Sathyamoorthy in September 2013 and she felt his development level was below eighteen months.  Today I felt his skills might just be above the eighteen months level, but his language development and complexity of his play are below the eighteen month level.  As Ja is now three and a half years old his developmental rate is less than half.  This is generally called a severe learning difficulty. …
… Ja also had intra-uterine growth retardation, the underlying cause of which is unknown.  He has severe developmental delay.  He is generally a happy and placid boy who enjoys the attention of his carer.  Physically he appears to be healthy.  Although long-term predictors are extremely imprecise, the most likely outcome for Ja is that he will need special education throughout his childhood and probably will need to live residentially or heavily supported as an adult. …
… Although the developmental profiles are somewhat different my feeling is that Ja [and M] may have the same underlying but as yet undiagnosed condition.  Although both have had chromosome tests returned normal, referral to the North Wales Geneticist is appropriate for the consideration of more detailed chromosomal analysis which has recently become available in Wales”.
Dr Bos will make that referral.
36.	In relation to M, Dr Bos says:
“M is delayed in her gross motor skills.”
He goes on to say:
“Considering the information today her gross motor skills are at seven months level while her language skills and understanding of toys have reached a nine month level.”
Chronologically of course M is thirteen/fourteen months old.
37.	The summary is as follows (and I quote from Dr Bos’ report):
“In summary, M was born with intra-uterine growth retardation i.e. was born much smaller than expected for her gestational age.  M has developmental delay.  An estimate of the prognosis can only be vague as M is still so young.  My impression today is that M may have moderate learning difficulties but they could turn out to be only mild with the passing of time.  M’s development will need to be monitored”.
38.	Dr Ward’s oral evidence emphasised that Ja needed a period of stability, both in his home life and in his school environment.  He would find it difficult to manage changes in his environment which would have to be well planned and gradually implemented.  For an adoptive placement, the complexity and uncertainty about his condition made him a difficult child to place with adopters.  Consistent care might not be enough to effect a significant improvement in Ja’s circumstances if there was a genetic component in his presentation, and of course that required further investigation.
39.	Similarly in M’s case, a concluded prognosis could not be given and there was therefore significant uncertainty with regard to her also.
40.	It is within this context that the current foster carers for M and Ja have offered to care for both of the children.  Indeed the foster carers have told the Key Social Worker that they are looking at larger properties to enable Ja and M to have their own bedroom, as M currently remains in the foster carer’s bedroom (see B103).  The Guardian also told me that the foster carers were investigating the possibility of grants being made available to them by the Local Authority, to enable them potentially to extend their home or to assist in searching for another property.
41.	M and Ja have integrated well with the foster carers who have demonstrated over a period of six/seven months their ability to offer a high standard of care;  “Second to none” was the description the Guardian gave to me.  The Guardian also said to me that the foster carers potentially see themselves as the ‘forever’ family for M and Ja.  The children’s place of course within that foster family replicates their situation in the birth family, because there are three older children within the same home in the birth family as well.  The female foster carers own mother has developed a significant relationship with the children (I was told). 
42.	The Guardian (see paragraphs 10.8 to 10.11 of her report) identifies, it seems to me, a number of important ingredients:
“These children have complex needs.  They will benefit from experienced parents.  It is difficult to find placements for children with complex needs with uncertain prognosis.  These children, particularly Ja, are going to need a significant amount of support not just throughout their childhood but into adulthood.  Any adopters are likely to need lifelong support not just the usual three years that are guaranteed.  These children have the right to a ‘forever family’ however their current carers who are tried and tested have indicated that they would like to be long-term foster carers for Ja and M.  These children are much loved by their foster family and well-established with their family grouping.  I have observed the three children of the foster family to interact with and accept Ja and M as younger siblings.  The foster mother is a qualified nurse and well placed to meet the children’s complex needs.  She has indicated that she would be willing to promote sibling contact between the children and their half-siblings within her home.  The foster family would not consider adopting Ja and M or becoming their Special Guardians on the basis that they will need a varying degree of social work support in order to successfully parent the children.  It is also their view that their own children benefit from the services available to them as children of a fostering family”.
43.	After a slow start in Ja’s case, he has settled into his new home.  He is settled in his school where he can make progress.  Both children would retain links with their wider family of course in foster care, which would be lost to them in any adoption.  The prospect of achieving adoption is uncertain (perhaps extremely uncertain), with a limited supply of potential adopters for children with such complicated needs to fulfil.  The Guardian (at paragraph 10.7 of her report) identified 1,800 children awaiting adoption in England and Wales with only 500 approved adopters.  The Key Social Worker could identify only two potential couples within the North Wales Adoption Consortium; one for a sibling group and one for a single child.  These were not promising statistics, although of course I accept that the picture with regard to the availability of adopters is a constantly evolving one.
44.	The Guardian accepted (as indeed do I) that the foster carers have a genuine reason for wishing to remain as foster carers for M and Ja as opposed to becoming Special Guardians or Adopters.  As I have noted, they require the long-term support (both financial and other support) which they felt only the Local Authority could provide.
45.	The support given to adopters could be more limited, and this was of concern to the Guardian.  However, what tipped the balance for the Guardian in favour of the Local Authority’s Plans was the prospect of M (and perhaps to a lesser extent Ja) remaining in foster care throughout their minority.  On balance, she believed that the prospect of attaining a joint adoptive placement for both of these children (or indeed a placement for Ja alone) was an unlikely one.  Her concerns about placement breakdown were real because of the demands of the children, and these appeared to be matched whether a placement were a long-term foster placement or indeed an adoptive placement.
The placement of the children
46.	It is accepted (as I have said) that the parents lack the capacity to parent these children to a ‘good enough’ standard having regard to their complex needs.  In accordance, therefore, with the decision in North Yorkshire County Council v B [2008] 1FLR 1645, I can rule out rehabilitation to the parents in the circumstances of this case.  The parents could manage intermittent periods of face-to-face contact, but not 24/7 care for both of these children.  If full time care were attempted by the parents, I believe the children would be likely to suffer significant harm once more.  
47.	Having found the threshold to be established under Section 31(2) of the Children Act 1989, the next aspect is the scrutiny of the Local Authority’s Care Plans, applying the paramountcy of the children’s welfare under Section 1 of the Children Act 1989 and Section 1 of the Adoption and Children Act 2002.
48.	The Plans propose placement by way of adoption and in accordance with the guidance given in the case of Re B-S [2013] EWCA Civ 1146, they are accompanied by a pros and cons analysis.
49.	McFarlane LJ in the case of Re C [2013] EWCA Civ 1257 has disapproved of the practice of treating applications for Care and Placement Orders separately where there are conjoined applications for these Orders.  I refer to paragraphs 28 and 29 of his judgment.  Such an approach (it is said) may restrict:
“… a proper holistic evaluation of the central welfare question”.
50.	Since I have made threshold findings already, I have jurisdiction to make Care Orders and also to make Placement Orders in the latter instance under Section 21(2)(b) of the Adoption and Children Act 2002.  I have to scrutinise the Care Plans carefully and consider the children’s individual welfare as paramount under Section 1(1) of the Children Act 1989 or their welfare throughout their lives as paramount under Section (1)(2) of the Adoption and Children Act 2002.  I have to apply, of course, these ‘checklist’ provisions under Sections 1 of both statutes to the facts of this case.
51.	In accordance with the Convention, the Plans must be a proportionate response to the risk of harm.  That was decided in the case of Re C and B [2001] 1 FLR 611 (see paragraph 33 and 34).  In Re B [2013] 2 FLR 1075 the Supreme Court has recently emphasised that a Care Order (and particularly a Care Order with a Plan for adoption) should be considered as a “last resort” (see paragraph 74 to 77 of Lord Neuberger’s judgment).
52.	In support of these applications for Placement Orders in the case of both of these children, I have the application with a Statement of Facts and an Annex B report in each case.   Both of the children (as I have said) are physically healthy and a pre-adoption medical has already taken place on 22nd January 2014.  The Agency Decision-Maker ratified these Plans on 23rd January 2014, prior to issue on 3rd February 2014.  Therefore the preliminary requirements of the Adoption Agencies (Wales) Regulations 2005 (as amended from 1st September 2012) and Section 18(2) of the Adoption and Children Act 2002 have been complied with.
53.	I can only make a Placement Order if the consent of the mother and the father is dispensed with under Section 52 of the Adoption and Children Act 2002, since they share parental responsibility for the children.  I can only come to that conclusion by applying the paramountcy of the children’s welfare throughout their lives and (as I have said already) by applying the provisions in Section 1(4) of the Adoption and Children Act 2002.  That section has to be applied also when I come to any decision regarding the adoption of the children, and that includes of course the making of a Placement Order (which is the combined effect of Section 1(1) and Section 1(7) of the Adoption and Children Act 2002).
54.	In Re B-S recent guidance was offered in the case of placement applications:
(i)	consistent with the least interventionist approach, adoption is a last resort (see paragraphs 23, 26 and 27 of the judgment);
(ii)	the Court should consider carefully the assistance which a local authority could provide for parents (see paragraph 29).  In the circumstances of this case, that is not a material consideration;
(iii)	there must be evidence available from the Local Authority and the Guardian addressing each realistic option for placement together with a reasoned recommendation (see paragraph 33 and 36 of the judgment).  I have that information in the documentation before me and the oral evidence which has been provided; and
(iv)	Judges must give adequately reasoned judgments analysing the options and giving clear conclusions (see paragraphs 41 and 48 in Re B-S).
55.	The Local Authority maintains (having weighed up all the pros and cons) that the balance comes down in favour of the Local Authority’s Plans as proposed.  Reliance is placed upon the case of Re T [2008] 1 FLR 1721 and the well-known passage from paragraph 17:
“Even if there is a real possibility that an adoptive placement will not be found it by no means follows that adoption is not in the best interests of the child.  … Mere uncertainty as to whether adoption will actually follow is not a reason for not making a Placement Order”.
In Re T of course a distinction was drawn between the potential difficulty of placement, and children who were not suitable for adoption and required specialist therapeutic foster care as a prelude to any adoption.
56.	Reliance was placed also upon the case of Re P [2008] 2 FLR 625 which deals of course primarily with the requirements of dispensation of parental consent, but also emphasises that a twin-track approach (where foster care and adoption are both potential outcomes), can legitimately be pursued.  The Local Authority contends in this case for a time-limited search looking for adopters for a period of some twelve months, and accepting the Guardian’s suggestion in that regard.
57.	My attention was drawn also to the case of Re V [2013] EWCA Civ 913 where at paragraph 96 of that judgment Black LJ drew attention to the distinction between foster care and adoption, and in particular emphasised their different aspects:
(i)	the permanent nature of adoption;
(ii)	the fact that adoption of course applies for all time;
(iii)	that the regime of contact under adoption is very different to that of a Looked After child within the ambit of a Care Order; and
(iv)	that the quality of the experience for a child is very different within an adoptive as opposed to a foster care placement because of the intrusion of the Looked After Child system.
58.	It seems to me that these decisions in the case of Re T and Re P must now be viewed within the context of other recent decisions.  It is quite true that neither Re T nor Re P were overruled in more recent authorities, but the authorities have to be reconciled and there is some tension (it seems to me) between the thrust of the authorities quoted by the Local Authority and those quoted on behalf of the parents.
59.	So far as Re B-S is concerned in paragraphs 19 to 22, the following passages are of significance:
“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’.  This is a stringent and demanding test.
21.  	Just how stringent and demanding has been spelt out very recently by the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2003] 2FLR 1075 …
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.’ …”
60.	There is of course no guarantee that the Local Authority will approve the childre’s current carers as long-term foster carers for M and Ja, although the Key Social Worker said that there was “nothing she knew of to indicate that they would be unsuitable as long-term foster carers”.  There are in fact only two other long-term foster carers available within the area, and it is generally recognised that foster carers are a scarcer resource even than adoptive carers.
61.	The Local Authority of course maintains that because of these children’s particular needs, their disability merits a greater degree of protection than might otherwise apply in the case of other children.  There is a need for family life to extend beyond the ages of eighteen in the case of M and Ja.  If the Court were to conclude in this case that because of their inherent difficulties these children could not be placed, what difference would there be between this case and other similar cases where children with special needs might be the subject of Placement Order applications?  If the Court were to adopt a blanket approach of that kind and refuse such applications, the Local Authority contends that this potentially would be a discriminatory approach, whereby children who had disabilities and special needs would not even be afforded the opportunity of a search for a ‘forever’ adoptive family.
62.	The response made on behalf of the parents to that argument is essentially this; we are not dealing here with a general, we are dealing with a particular.  We are dealing with the case of these particular children and their particular requirements and what is sui generis so far as these children are concerned is the availability of the current foster carers potentially being able to offer a high standard of care for both of these children for the foreseeable future.  That of course cannot be guaranteed but it is potentially available in a situation where the alternative (namely adoption) at present appears to be more uncertain.
63.	That, in summary form, is the argument presented on behalf of the Local Authority on the one hand (supported by the Children’s Guardian) and by the parents on the other hand.
The factors in relation to each type of placement
64.	In the case of foster care, some of the factors of course are valid for the current placement but some are of more general application.  It seems to me that the following factors apply:
(i)	the current foster carers have demonstrated an ability to care for the children already to a very high standard;
(ii)	the children are well settled and they are integrated with their foster carers and with the foster carers’ family and they are cared for together, and potentially this could be continued;
(iii)	the female foster carer’s nursing qualification is a positive advantage;
(iv)	the foster carers have available to them all the support which the Local Authority can offer to these children throughout their minority, including of course respite care which might well be of benefit in this case;
(v)	foster care offers the prospect of maintaining familial relationships (parental and sibling) otherwise lost during childhood and potentially impaired throughout life;
(vi)	the current educational and health provision appears to be suited to the children’s needs, although I recognise that they could be replicated in other parts of the country if the children were to be found adoptive placements out of area;
(vii)	the foster placement could break down if circumstances changed and the Local Authority would then be forced to implement contingency plans and this might of course be less likely if adoptive placements were secured for the children;
(viii)	the nature of the relationship between foster carer and fostered child when contrasted with adopters and adopted children is of course a very different one.  Adoption more closely replicates family life, without continued interference by statutory agencies.  Of course in this case because of the children’s particular needs they will be the subject of external agency intervention (educational, medical and so on), and post adoption support will also probably be necessary for any adopters taking on these children.  The children’s awareness of being looked after children may of course be more limited, bearing in mind the children’s particular developmental progress;
(ix)	there is real uncertainty about whether adoption in practice will be achieved and if so when it will be achieved, even during a time limited search.  In short is the safer immediate option of foster care (hopefully with the existing carers) reprersenting the ‘bird in the hand’ better than a yet to be captured bird of bright plumage in the tree above (representing as it does the possibility of adoption);
(x)	adoption of course is a lifelong relationship; foster care may not be.  Having said that, both of these children, and in particular Ja, have significant needs well beyond their childhood which may require (at least in Ja’s case) Leaving Care assistance and potentially Adult Social Care intervention throughout his life.  That at least appears to be the information provided to me by the medical experts at present.  This safety net may be as real for these children as may be the commitment of any adopters to them throughout their childhood.  The very fact that an adoptive status exists does not of course guarantee any kind of particular support by an adult adoptive carer for adoptive children once they attain their adulthood.  The position is much the same as a birth parent with regard to a child of the family.  Of course there are important emotional links between an adult child and his or her parents, and they may be recognised by the parent as the child grows into adulthood, but there is no legal requirement upon any parent to support his or her child once that child attains the age of majority.
The statutory provisions 
65.	The wishes and feelings of the children cannot be elicited under Section 1(3)(a) and 1(4)(a) of the Children Act 1989 and the Adoption and Children Act 2002 respectively.
66.	Having identified (as I have already) the children’s needs, their age, their sex and other characteristics under Section 1(3)(b) and 1(3)(d) of the Children Act 1989 and 1(4)(b) and 1(4)(d) of the Adoption and Children Act 2002, what other factors are relevant to this equation?
67.	Section 1(3)(e) and 1(4)(e) of the Children Act 1989 and the Adoption and Children Act 2002 respectively relate to parental care, which of course is not an option in this case.  Accordingly, the capabilities of the parents under Section 1(3)(f) of the Children Act 1989 does not materially assist with regard to the placement options in this case.
68.	The children (and particularly Ja) are likely to be affected by a change in their current circumstances and with regard to his school, which of course is relevant under Section 1(3)(c) of the Children Act 1989, but that process potentially could be managed with care and attention.
69.	The loss of direct familial links to be replaced by life-story work is also an important factor under Section 1(4)(f ) of the Adoption and Children Act 2002.  
70.	Furthermore, under Section 1(4) of the Adoption and Children Act 2002 I have to consider the children’s welfare throughout their lives, and under Section 1(4)(c) of the Adoption and Children Act 2002 the likely effect upon them throughout their lives of having ceased to be members of the birth family and becoming adoptive persons.  This is a much longer timescale than simply the children’s childhood. In many cases, the benefits of an adoptive placement throughout childhood, creating firm and secure attachments which offer a firm foundation for adult life, often outweighs the loss of this direct familial relationship.  That is why, in cases where the threshold of significant harm is met, Parliament has allowed the Family Courts of England and Wales to make non-consensual adoption orders, where it is proportionate and necessary to do so.
71.	In this case, however, the balance is not so clear cut.  I disagree with the conclusion of the Local Authority and the Guardian in this case.  Applying the factors that I have identified above, I ask myself do these children in these circumstances require adoption; i.e. is that imperative rather than optional, reasonable or desirable?  I would answer that question in the negative.
72.	Some might say that a conventional outcome for children as young as these (where they cannot return home and where there are no alternative familial carers) would be adoption and not foster care.  The foster carers themselves may well share this belief (as the social worker told me in her evidence), but there should not be a conventional response to any application in relation to a particular child.  I have the real prospect of attaining good quality foster care for both of these children from two good people and their family, who have demonstrated this already.  That is what makes this case sui generis.
73.	A period of uncertainty and delay while a search proceeds may restrict (albeit subtly) the foster carers’ unguarded emotional commitment to the children, because of the lurking possibility that the children may leave their care.  There is, therefore, a very real downside to the making of a Placement Order just to ‘give it a go’ and to see what turns up with regard to the availability of suitable adopters.
74.	It seems to me that the use of the word ‘require’ under Section 52 of the Adoption and Children Act 2002 enjoins me to identify a decisive benefit, clearly favouring adoption, as opposed to another less intrusive Order.  In the particular circumstances of this case, I cannot do so.  Accordingly, I conclude that adoption is not a proportionate response for either of these children and I could not approve the Local Authority’s Care Plans in relation to them.  Secondly, I could not dispense with parental consent in this case and I could not make Placement Orders.
75.	I am entitled to ask the Local Authority to pause and to think again, as was decided in the case of Re S and W [2007] 2 FLR 275, 283 (see paragraph 30).  Sometimes the intransigence of a Local Authority forces a Judge to choose between the lesser of two evils (see Re S [2002] 1FLR 815, 838 paragraph 94), but that point has not been reached in the circumstances of this case.  It is suggested that where there are conjoined Placement and Care applications and the Court finds itself unable to approve a Care Plan for adoption and make Care and Placement Orders, the Court should afford the Local Authority an appropriate opportunity of taking stock, before proceeding to dismiss the Placement Order application and making Care Orders but without approving the Care Plan (see Plymouth County Council v G [2010] EWCA Civ 1271).  In this case, the Court’s favoured Plan of foster care (if possible by the current foster carers) requires of course the making of Care Orders, because the discharge of the existing interim Care Orders and return of the children to parental care would be positively harmful for both of these children.
76.	Accordingly, I propose to adjourn both of these applications for the Local Authority to reconsider the Care Plans.  As was said by Wall LJ in the case of Re S and W (to which I have already referred) at page 284, paragraph 35:
“It is, we think worthwhile pausing for a moment to reflect on why a Court is entitled to exercise a discretionary jurisdiction to adjourn in order to invite a local authority to reconsider.  The answer we think is that much of what we have said already is self-evident.  Care Proceedings are only quasi-adversarial.  There is a powerful inquisitorial element.  But above all they are proceedings in which the Court and the Local Authority should both be striving to achieve an Order which is in the best interests of the child.  There needs to be mutual respect and understanding for the different role and perspective which each has in the process.  We repeat: the shared objective should be to achieve a result which is in the best interests of the child.”
77.	If the Local Authority agrees to modify it’s Care Plans, I would expect revised Final Care Plans to be available after the adjournment.  The parents I assume would agree to the placement change, and the Guardian can tell me about her position at the adjourned hearing.
78.	Contact within long-term foster care would need to be reduced, so that the children could become more settled in their new home.  In that regard, I would accept the Guardian’s evidence about the frequency of such contact at six times per year (at least initially), to coincide with holiday periods.  The management of any contact, within long-term foster care, would be the subject of statutory review, and how precisely parental and inter-sibling contact with the older children is to be managed would be a matter largely for the Local Authority’s discretion.
79.	I propose, therefore, to adjourn these applications for a period of approximately three weeks, to give the Local Authority the opportunity of taking stock of my judgment.  I do not necessarily expect them to approve the current foster carers within that timescale, but I do expect them to have reflected upon the judgment today and to be able to afford me some answer as to whether they are proposing any modification of their Care Plans.  In which case, I can make further directions to finalise these applications or (if they do not) whether I am then driven to consider what is the lesser of two evils with regard to the outcome of these applications.
80.	I propose then to reconvene at some stage around 5th March 2014 (depending of course on the availability of the advocates) to see what the Local Authority’s answer following this period of reflection might be.
End of judgment