England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT BRISTOL
His Honour Judge Rutherford
BS16C00493

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/07/2017

Sir Ernest Ryder, Senior President:

1. On 16 December 2016 His Honour Judge Rutherford sitting in the family court in Bristol made a care order in respect of a four year old boy and refused the local authority's application for a placement order under the Adoption and Children Act 2002. The consequence is that the child has been removed from the care of his parents and placed with his respite carer who the court was told is available and able to be his long term foster carer. He is having limited direct contact with his parents. With the leave of the single judge, the local authority appeal the court's decision to refuse to make a placement order. They are supported by the children's guardian on behalf of the child. The parents oppose the appeal.
2. The appeal raises no new issue of law or principle. As will become clear, if my Lady and my Lord agree, I would dismiss the appeal. A preliminary observation was made in open court by all of the judges of this court that I wish to repeat. It should no longer be necessary for this court to remind legal representatives that they have a duty (including where appropriate to the legal aid agency) to consider whether each party needs to be separately represented on an appeal. In this appeal, the local authority and the children's guardian had an identity of interest, as did the mother and the father, but legal costs have not been incurred because of an appropriate decision made by counsel not to claim their fees.
3. The issue in the appeal is clear and simple. Was the judge wrong to prefer long term fostering to adoption? There were three realistic options before the court about which the court heard evidence at the contested hearing. They were continued care of the child by his parents (with or without a statutory order), long term fostering with his existing respite carer or adoption. The child's need for direct contact with his parents was relevant to the options that had in their contemplation the long term separation of the child from them.
4. The decision to make a care order was based upon the court's conclusion that the child needs better than average care and his parents are unable to provide that care. That decision and the reasoning that underpins it is not in issue in this appeal. Long term fostering was not the local authority's first choice and on their case would only be appropriate if a search for adoptive carers was unsuccessful. The local authority proposed to undertake that search over a period of six months and, if unsuccessful, intended to fall back on a contingency plan of long term fostering with the respite carer. It was common ground that the child would need direct contact with his parents and the local authority's plan and the guardian's advice was to seek an adoptive placement that could provide for the same.
5. It is a matter of regret that in the six months that has intervened between the order complained of and the appeal hearing the local authority did not see fit to undertake concurrent planning in order that they might know about the success or likelihood of success of a search for an adoptive placement. The appeal after all is being heard at a time when the local authority would have abandoned its search for adoptive carers, the child having been with his foster carer for six months. The irony of that circumstance appeared to be lost on the local authority until it was pointed out. It is no good saying that appeals should not take so long. I am sure everyone would agree but local authorities have statutory care planning and review obligations and that includes consideration of the adverse impact on a child of delay. If it is the case that a welfare analysis necessitated a time limited search for adoption, the same analysis should inform the local authority's planning process over the same time period. The circumstance in which the child finds himself is exactly the same as if the local authority had failed to find an adoption placement during the six months the child has been with his respite foster carer.
6. The evidence upon which the Family Court was asked to make a decision about the placement order application was limited. That description seemed to take the parties by surprise but it is accurate. There was a balance sheet of the pros and cons of the placement options prepared by a local authority social worker and comment on the same and a welfare checklist analysis by the guardian. There was little detailed evidence about the local authority's preferred plan and no evidence about its contingency plan, for example, an assessment of the foster carer. No application was made to adduce additional evidence before us, for example, relating to what had happened after the removal of the child from his parents and his placement with the foster carer. Counsel for the local authority informed the court at the end of the appeal hearing that the family court had the benefit of an 'Annex B' report on the placement order application and a statement of evidence from an adoption social worker about the number of available placements of different types on the national adoption register. Neither document was filed with this court and no reliance was placed on their content other than to identify the number of placements that were available more than six months ago.
7. This court was left with the stark disagreement that exists about the judge's decision and the limited evidence upon which the judge made that decision. Given that the appeal of necessity rests on a value judgment about the weight that the judge attached to the balance of factors demonstrated in the evidence ie the benefits and detriments of the realistic placement options, one might have expected the quality of the evidence on the point to have been scrutinised before coming to an appeal hearing.
8. In coming to the conclusion that the evidence was limited I have had regard both to the nature of evidence that this court has previously highlighted as being relevant to a placement order decision: see for example Re V (long-term fostering or adoption) [2014] 1 FLR 1009, [2013] EWCA Civ 913 and to this court's criticism of opinion or reasoning that is not related to evidence about the child concerned: see Re B-S (adoption: application of s47(5)) [2014] 1 FLR 1035, [2013] EWCA Civ 1146 at [30] to [46] per Sir James Munby P for a comprehensive summary. The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for a child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.
9. In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.
10. In this context, the evidential importance of what is described in the Adoption Agencies Regulations 2005 as the 'permanence report' is not to be underestimated. I have highlighted the relevant regulatory scheme on more than one occasion (see, for example: In the Matter of S (A Child), K v London Borough of Brent [2013] EWCA Civ 926 at [4] and [22 to 24] and Surrey County Council v S [2014] EWCA Civ 601 at [28]). In England, and by reg 17 of the 2005 Regulations, the permanence report has to contain an analysis of the options for the future care of the child and why adoption is the preferred option. By reg 12, the local authority's adoption agency decision has to be recorded in the child's care record.
11. The permanence report and the agency decision maker's record of decision contain the required analysis and reasoning which is necessary to support an application for a placement order. They are disclosable documents that should be scrutinised by the children's guardian and are susceptible of cross examination. It is good practice to file them with the court in support of a placement order application. Given their importance, I would go further and say that it is poor practice not to file them with the court because this is the documentation that records in original form the pros and cons of each of the realistic care options and the social work reasoning behind the local authority's decision to apply for a placement order.
12. The reasoning of necessity will include a justification of the opinion that nothing other than adoption will do, it will consider the child's need for contact, on the facts of this case it would be the source of the best interests proposition that the search should be limited to six months and any relevant information about the feasibility and availability of the placement options. It is neither second hand nor in summary form as everything else tends to be. In this case the good practice that I have identified was not followed. The judge did not have the permanence report or the agency decision maker's record of decision. Whatever analysis of the options that the documents could have provided was missing.
13. Given the limited nature of the evidence that was filed and the fact that much of it was stated rather than reasoned opinion, the judge was placed in a dilemma. The child's need for continuing direct contact with his parents was identified by the parties. There were at least three factors that were identified as being relevant to that need: the child has a genetic chromosomal abnormality, he has challenging behaviours (whether constitutional arising out of his medical condition or caused and/or exacerbated by the lack of nurture that his parents have provided) and he will need the reassurance of direct contact with his parents to cope with his separation from them.
14. In oral evidence the guardian told the judge that the child would suffer 'a terrible loss' on being separated from his parents and that he would 'need a lot of reassurance' that would be provided by direct contact with them. It is accordingly understandable, given the child's special needs, that the court was advised that the local authority should endeavour to find a placement that could facilitate direct contact. Placements that can facilitate direct contact after adoption are relatively rare. I note with concern that save for identifying placements in an appropriate category on the national adoption register, there was no evidence about the feasibility of finding such a placement for a child with these needs within a reasonable timescale. That is particularly so given that the court was told that this child needed a decision to be made about his future in no more than six months and that he needed 'very special prospective adopters'. The guardian said that she did not know whether an adoptive placement with contact could be found.
15. The guardian expressed the opinion in evidence that the child's need for contact must take second place to the need to find a permanent placement for the child. As a general proposition that is unobjectionable but this case was more nuanced than that and the evidence relating to the realistic placement options was informed by the underlying factors that I have described. For example, the child's developmental delay was said to require an increased level of support on a day to day basis and he was said to be 'a very confused, highly stressed and sometimes quite an angry little boy' and that is before the incidence of the distress that was predicted on removal from his parents.
16. In that context the local authority argued for an adoptive placement and hence a placement order. It is not correct to submit as the local authority did that there was 'simply no evidence to support long term fostering as a viable "good enough" alternative to adoption'. The child's needs as described in the evidence were a very relevant factor and the contingency plan to place the child with his respite foster carer was described as excellent and would have come into effect for the reasons given at the six month point. It would also have provided the direct contact that the child needed. His foster carer had already demonstrated her capability to provide for his needs.
17. There is no criticism of the judge's legal analysis. He focused at an appropriate point on the provisions of the Adoption and Children Act 2002. He rightly relied upon the decision of this court in Re P (placement orders: parental consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 per Wall LJ at [126]:

"A child's circumstances may require statutory intervention, perhaps even require the indefinite or long term removal of the child from the family and his or her placement with strangers but that is not to say that the same circumstances will necessarily require that the child is to be adopted. They may or may not. The question is whether what is required is adoption".

18. The judge went on to observe:

"If adoption is always to be preferred over long term fostering, as is the policy position, because it has an added stability and permanence, then those words of the learned Lord Justice are meaningless. As soon as one concludes that a child must be removed indefinitely or for the long term, adoption will follow as night follows day. That is not the case. You cannot say one size fits all. Each case needs to be considered on its own facts"

19. The judge was acutely aware that he was looking for evidence that adoption was required. He was equally aware of the importance of stability and permanence. Given the limited evidence which existed I cannot say that he was wrong in the balance that he undertook or the conclusion to which he came. I would dismiss this appeal.

Lord Justice Burnett:

20. I agree. This was a difficult case for this experienced judge who carefully considered the evidence available. The primary issue he had to decide was whether the child should remain with the parents. Much of the evidence and time at the hearings were devoted to that issue. The parents would dispute his conclusion that they are not able to provide the care needed but, rightly, have not appealed it. Nonetheless, the unanimity of expert view was that continued contact between the child and parents was necessary, and it was in that context that the judge had to decide between long-term foster care and adoption. This was not a case where only one of those options was available on the evidence. It is for first-instance judges to make findings of fact and the evaluative judgments which flow from them in this type of sensitive case. The Court of Appeal will interfere only if the judge has failed to apply the correct legal principles or come to a conclusion which the evidence would not support. The judge meticulously applied the correct principles and came to a conclusion open to him on the evidence.

Lady Justice Gloster:

21. I agree with both judgments.