England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
Sitting at Leicester
Her Honour Judge GEORGE

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 January 2018

Sir James Munby, President of the Family Division :

1. This is an appeal from an order of Her Honour Judge George, who was sitting in the Family Court at Leicester hearing care proceedings in relation to a little girl, B, who was born in the spring of 2016. B has an elder full brother, H, who was born in 2015. He was adopted in 2016. The essential issue before Judge George was whether B should be placed with H's adoptive parents or with her father's cousin, I, and her partner R. Judge George gave judgment and made her order on 21 August 2017. She made care and placement orders with a view to B's adoption by H's adoptive parents.
2. B's father sought permission to appeal, which was granted by McFarlane LJ on 13 October 2017. He observed that the appeal raises an important point of principle. The appeal is supported by B's mother and by I and R; it is opposed by the local authority and by B's children's guardian. The appeal came on before us on 23 November 2017. B's father was represented by Ms Sarah Morgan QC and Ms Olivia Magennis, B's mother by Ms Charlotte Georges, I and R by Ms Deirdre Fottrell QC and Ms Louise MacLynn, the local authority by Mr Martin Kingerley, and B's guardian by Mr Will Tyler QC and Ms Emily James. At the end of the hearing we reserved judgment.
3. The point of principle referred to by McFarlane LJ, and which has been the focus of the excellent submissions we have had the pleasure of reading and hearing, relates to the ramifications of the decision of this court in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2017] 1 FLR 330. Before going any further, and the better to put the key passages in Judge George's judgment in context, it is convenient to examine the decision in Re T, a case in which, as it happens, I gave the only judgment.
4. I start with this (Re T, para 43):

"From the very earliest days of the 1989 Act … the court has set its face against the joinder in care proceedings of foster parents or prospective adopters. Two decisions of this court explain why."

That was a reference to the decisions of this court in Re G (Minors) (Interim Care Order) [1993] 2 FLR 839 and in Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FLR 959.

5. The central principle was explained in the latter case by Wilson LJ (Re A, para 24):

"The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her."

He continued (para 34):

"I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child's committal into care, the placement order is not the court's last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order … As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s 18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child."

6. I said much the same in Re T, para 50:

"The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children's guardian … who has the task, indeed is under the duty, of subjecting the local authority's care plan to rigorous scrutiny and, where appropriate, criticism."

7. I went on to recognise (Re T, para 51) that there might be "an exceptional case justifying [a] departure from the general approach", echoing in this respect what Wilson LJ had said in Re A, para 35:

"To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy."

Waite LJ had similarly qualified the general principle when in Re G (page 846) he contrasted what was "normally" appropriate in "ordinary circumstances" with the circumstances in Re G itself, which he described as being "exceptional … with many unusual features."

8. Her Honour Judge George, in a careful and detailed judgment to which I wish to pay deserved tribute, appropriately and correctly directed herself by reference to the relevant provisions of the Children Act 1989 and the Adoption and Children Act 2002 and to the judgments of the Supreme Court in Re B [2013] UKSC 33 and of this court in Re B-S [2013] EWCA Civ 1146, Re R [2016] EWCA Civ 1625 and Re W [2016] EWCA Civ 793. She also recognised that Article 8 was engaged, acknowledging the application of the principle of proportionality and (judgment, para 14) that the court "should make no more interventionist an order than is necessary to meet the needs of the child." There was, and could be, no criticism of that part of her judgment.
9. Turning to consider Re T, Judge George said this (judgment, paras 19-21):

"19 … That was a case where the potential adopters had also been the child's foster carers for a period of time and they sought to be made parties to proceedings. The court found that it was not necessary for the prospective adopters to be joined, they had already been positively assessed, and cautioned against, in a case such as that one, allowing the process to become a dispute between prospective adopters and the birth family, "lest the court be diverted into an illegitimate enquiry as to which placement will be better for the child because that is not the question before the court."

20 This case can be distinguished from that one because [B] has no existing relationship with the proposed adopters as existed between the child and prospective adopters in Re T. I have to determine this case in the knowledge that the prospective adopters for [B] care for her full sibling brother. To the extent that fact is known, a degree of comparison between the options before the court is unavoidable in seeking to establish what [B]'s welfare needs are and how they can best be met. That inevitably happens when the court weighs up the pros and cons of each option. However, as I hope this judgement will show, it is the principle of adoption that the court is considering in the particular facts of this case, not choosing the better of two alternative placements.

21 The local authority asserts that, all things being equal as to the quality of each placement, [B]'s welfare throughout her life lies with her being brought up with her brother. At the pre-placement stage the court is still considering adoption in principle, in this case in the knowledge that the prospective adopters care for [H]. In weighing the pros and cons of each option the court must steer a course between the known fact that [H] has already been placed for adoption and trying to avoid it being a competition between two possible placements. The court must undertake the necessary balancing exercise, but in the knowledge that the adoption placement whilst still being considered in principle holds [H]. That is the approach I have attempted to take in this case."

10. The judge continued (paras 25-27):

"25 There is no authority on all fours with this case where a sibling is already placed with prospective adopters. The case law, in my judgment, whilst making clear that the placement options are not to be seen as in competition requires the court to carry out a holistic global analysis of the pros and cons of each option. The adoption option in this case cannot ignore the fact that if placed with adopters [B] will be living with a full sibling. Beyond that fact the court seeks to resist being drawn into a comparison between the two placements and certainly is not asking the question of which is the better placement.

26 The question in this case is whether there is an over-riding requirement pertaining to [B]'s best interests which makes adoption the right outcome for her, despite the positive assessment and viable option of a placement within the family. The social worker, IRO and Guardian are all of the view that the benefits of [B] growing up with a full sibling outweigh the benefits of a family placement.

27 The question, therefore, is one of weight to be attached to the competing pros and cons of each option, whether on analysis the court concludes, as the local authority and Guardian invite it to, that [B]'s welfare interests throughout her life require her to be placed for adoption and outweigh other considerations. The pros and cons of the two realistic options involve an analysis of the placement with [I] and [R], what life would be like with them, the extent to which relationships with the birth family and the quality and nature of them would be maintained. The pros and cons of an adoptive placement must be considered in the context where two siblings would be placed together, even though they have no existing relationship, but where the social worker and Guardian say the enduring and lifelong nature of the sibling relationship is of such importance as to lead the court to conclude adoption is necessary. Specifically the court will need to carefully consider s1(4)(c) and (f) of the welfare checklist in the ACA 2002."

11. Those sections provide as follows:

"The court … must have regard to the following matters (among others) –

…

(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,

…

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court … 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."

12. The judge next embarked upon a careful analysis of the evidence (judgment, paras 28-35). It requires to be read in full, but for present purposes I can concentrate on the evidence of the children's guardian, which the judge described (para 34) as "very thoughtful". She continued (paras 34-35):

"34 … She said that placement with [R] and [I] is a realistic option, they are an open and generous couple, but her professional judgment is that the advantages for [B] of a full sibling relationship outweigh the advantages of a placement with [R] and [I].

35 She was careful to point out that her recommendation did not turn on an assessment of [I] and [R], but the weight to be attached to the two competing factors set out in Sections 1(4)(c) and (f) of the 2002 Act. She had balanced on the one hand the effect of [B] having ceased to be a member of her original birth family mitigated in this case by the big plus of a lifelong relationship with her full sibling and closest relative and, on the other hand, the relationships she has with her relatives, the likelihood of those relationships continuing and the value to the child in them doing so. If [H] had not already been placed for adoption in a placement willing to take [B], the Guardian would support a placement with [I] and [R]. It would have been under a Care Order because currently the placement is untested. That would result in a period of uncertainty for [B]. Taking into account the research on the importance of the sibling bond and all the circumstances of this case she attached more weight to the sibling relationship, which led her to conclude that adoption was necessary."

13. The judge thus correctly recognised (paras 26, 34) that a family placement with I and R was a viable and realistic option. In that context, it is important to appreciate the point made by McFarlane LJ in Re W (A Child) [2016] EWCA Civ 793, paras 70-71:

"70 With respect to them, it is clear to me that both the Children's Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A's future welfare by affording due weight to all of the relevant factors and without applying any automatic "presumption" or "right" for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a "right" to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A's best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option "a runner" but should not automatically make it "a winner" in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that "if a family placement is a 'runner', then it has to be regarded as a 'winner'".

71 The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged."

14. Judge George then turned, first (paras 36-46), to an analysis of the "advantages of the kinship placement" and, second (paras 47-55), to an analysis of the "disadvantages of a kinship placement". In relation to the first, it is important to note the judge's finding (para 40) that "the issues raised are resolvable and not major concerns. They have not been sufficient to cause anyone to ask the court to rule out [I] and [R] as potential carers for [B]." In relation to the second, the judge said (paras 47-48) that:

"47 The disadvantages of a placement with [I] and [R] are that, first of all, it is an untested placement in which there is an element of uncertainty. It would be necessary for [B] to be placed with them under a Care order for at least 12 months with a view to proceedings then being brought for a Special Guardianship order. This means a delay in the permanency and making of final orders for [B] and that further proceedings would be necessary. There would continue to be local authority involvement in [B]'s life for a period of time.

48 It is also right to acknowledge that [I] and [R]'s family situation is facing a number of changes and whilst the significance of these must not be exaggerated and there is no reason to suppose that they will not manage them they are nevertheless changes that everyone will have to adapt to and introduce an element of uncertainty."

15. The judge then set out (paras 56-62) her analysis of the "pros and cons of an adoptive placement." She began with this (paras 56-57):

"56 One advantage of adoption is that [B] will be brought up with her nearest relative, a full sibling. This would mean that she would never be alone, she would have the shared experiences of being brought up in the same household, which will promote identity and self-esteem. The research which I have been referred to suggests that the sibling relationship is emotionally powerful and critically important, not only in childhood but over the course of a lifetime. People spend more time with their siblings than anyone else. Growing up with a sibling enables one to learn social skills, sharing and managing conflict and negotiating. The relationship can provide a significant source of continuity throughout a child's lifetime and is likely to be the longest relationship most people experience.

57 For children going into care it is generally accepted that siblings should be placed together unless it is contrary to an individual child's welfare needs. A shared history and experiences help self-identity and self-esteem because siblings provide support and companionship. An adoptive placement with her brother would mitigate against the loss of the relationship with her parents. This would be a lifelong relationship with her brother which would be promoted. The impact of becoming an adopted person, with the severance of legal and emotional ties with her parents and family, would also be mitigated by the shared experience of being with her brother."

16. As against that (para 61):

"The disadvantages of an adoption placement include severance of the links with the biological family. This can mean a real sense of loss, particularly to children when they get older and realise that they have not brought up within their biological family. It can also have a negative impact on their sense of identity and belonging. It will result in a loss of [B]'s relationship with her parents because there would be no direct contact with them. There would be a probable loss of contact with the extended family because it is unlikely that [B] will have contact with her half-siblings or with [I] and [R] and their family."

17. The judge concluded with a section (paras 63-69) headed "Decision." She began (paras 63-64):

"63 In the final analysis the court must decide whether the advantages associated with the sibling relationship outweigh the relationship with other family members: the parents, half-siblings, [I] and the wider family. This is the balancing exercise between the factors set out in Sections 1(4)(c) and (f) of the 2002 Act. I have already set out the benefits of the sibling relationship. Although there is no existing relationship between the siblings once the children are living in the same household one is likely to develop rapidly, given their closeness in age. I acknowledge the argument that to prioritise the relationship with a brother will be at the expense of all other family relationships. They do not have an existing relationship which can currently be given weight to, but rather the potential for a unique relationship lasting throughout their lives which the Guardian and social worker say should be prioritised.

64 The reality and quality of a continuing relationship with other family members is very relevant here therefore. As I have identified already, the relationship with her parents is likely to be very limited. [Her father] is likely to be in [Africa], so contact will be indirect with possible occasional visits to [Africa] … Contact with the mother is likely to be either non-existent or problematic and potentially disruptive and unsettling. [B] has no existing relationship with her half-siblings, but only the potential for one. That is likely to be very limited. Those children are all quite a bit older than her and may or may not develop a bond."

18. She continued (paras 66-67):

"66 When considering [B]'s welfare throughout her life the scales tip in favour of prioritising the relationship with her brother for all the positive advantages that will bring her set out above. What makes this case particularly difficult and finely balanced is the cultural dimension. However, a close examination of what benefits [B] would actually derive from a placement with [I] and [R] reveals that [and she then set out various matters which I do not propose to repeat as they might lead to the identification of the family. She went on:] The practicalities and financial cost of frequent visits to [Africa] may prove problematic.

67 Whilst a placement with [H] does not provide the cultural match which a placement with [I] could offer, the adopters have some cultural similarities and living with her brother would boost her identity because of growing up with her closest relative. His heritage and identity and early childhood experience of a foster placement at birth and then one stable placement afterwards, exactly mirrors her own. All this has led me to conclude that this is the over-riding requirement pertaining to [B]'s best interests throughout her life. Having reached that conclusion, I am satisfied that an adoption order is necessary to meet [B]'s needs and proportionate in all the circumstances of the case."

19. The judge concluded as follows (paras 68-69):

"68 Whilst this is more interventionist than a placement with [I] and [R], it has the benefit of permanency now. There will be no further delay. It will avoid the testing out of a placement with [I] and [R] and reduce the risks and uncertainties for [B] all of which adds weight to the decision that I have come to.

69 So the order that I make is for a Care and Placement order and the parents' consent be dispensed with on the grounds that her welfare requires it."

20. I have deliberately set out the key passages in the judgment at some length for two reasons. First, because they bring out very clearly the judge's careful, thoughtful and nuanced approach. Secondly, because, at the end of the day, I am satisfied that her findings, her reasoning and her conclusions were plainly open to her on the totality of the evidence and other materials before her. They are, in my judgment, unassailable.
21. The father's grounds of appeal are, in essence, two-fold:

i) The first complaint (ground 1) is that the judge erred in allowing her decision to become a competition between the adopters and the kinship carers. She was thus, it is said, drawn into assessing competing options without essential information about one of the options, with the consequence that her assessment was unfair and her order disproportionate.

ii) The second complaint relates to the judge's evaluation of the two options, each of which was realistic. It is said (ground 2) that the judge erred in prioritising B's relationship with H over her relationships with her wider family and in placing too much emphasis on the sibling relationship; that (ground 3) she placed too much weight on the 'untested' nature of the placement with I and R while failing to acknowledge that the placement with H's adopters was equally untested; and that (ground 4) she was too focused on avoiding the potential delay and failed to balance the purpose of such delay to B's best interests.

22. In my judgment, none of these matters is made out and the appeal should accordingly be dismissed.
23. The central core of the father's complaint relates to the judge's application – in his counsel's submissions, her misapplication – of the principles in Re T, the essence of the complaint being that the judge had, in conflict with those principles, treated the matter as a competition between the adopters and the kinship carers and, illegitimately, been drawn into an inquiry as to which would be the 'better' placement. As the passages from her judgment (judgment, paras 20, 21 and 25) which I have set out demonstrate, that is not what the judge said she was doing or what she thought she was doing. Nor, in my judgment, is that what she was in fact doing. On the contrary, she was carefully, conscientiously and, in my judgment, correctly applying the learning in Re T.
24. How else was the judge to proceed? She was confronted with the fact – the reality – that B's only full sibling, H, a sibling close to her in age, had been adopted and that H's adoptive parents were willing to adopt B. That was not something the judge could ignore, as it were put out of her mind, if she was to comply with her statutory duty under section 1(4) and in particular section 1(4)(f) of the 2002 Act. And in having regard to that objective, factual, reality, the judge was doing nothing inconsistent with the learning in Re T and the earlier authorities to which I have referred.
25. As Mr Tyler and Ms James pointedly observe, there is nothing in Re T to say that the court can ignore a crucial factor which is necessarily concomitant with a particular placement. The presence of H in B's life must fall in the credit side of the balance sheet in relation to placement with H's adopters, just as the loss of H must fall in the debit side in relation to the kinship placement; to ignore this would, they say, be a nonsense. I agree.
26. Complaint is also made, in particular by Ms Fottrell and Ms MacLynn, that the judge never grappled with the question of whether adoption per se was required for B and, in consequence, that she truncated the adoption process and, in effect, approached the case as if she was deciding an adoption application and on the assumption that, immediately following the making of the placement order, B would be placed for adoption by H's adoptive parents. I do not agree. The judge was well aware that she was considering only the making (if appropriate) of care and placement orders as a prelude to the entirely separate adoption proceedings which, if she made those orders, would no doubt follow in due course. And, in circumstances where the fact and reality was that H had been adopted by those who were offering a similar placement for B, the distinction between adoption per se and adoption by H's adoptive parents is more apparent than real.
27. The father complains that the process adopted by the judge meant that she ended up weighing the 'known' uncertainties in respect of the proposed kinship carers against the certainties of the adoptive placement. That, it is said, was an unfair half-way house; the judge, on this approach, should have embarked upon a full welfare evaluation and comparison of each prospective placement. I do not agree. The judge knew all that she needed to know about the possible placement with H's adoptive parents to be able properly to carry out, and in a manner compatible with Re T, the task she was embarked upon. Indeed, to go further into that aspect of the matter than she did would have risked offending against the principle in Re T.
28. In relation to the other grounds of appeal I can be quite brief. The father complains that the judge erred in prioritising B's relationship with H over her relationships with her wider family, in placing too much emphasis on the sibling relationship, and in attaching too little weight to 'nothing else will do'. I do not agree. The judge did not prioritise either of these placements – both, it is to be noted, family placements – over the other. She treated each as being viable and realistic and carefully evaluated the competing evidence and arguments before coming to her conclusion. The fact that her conclusion favoured X rather than Y does not mean that the judge was prioritising X over Y. Her conclusion that, in all the circumstances, B's future relationship with H throughout their lives tipped the balance and was determinative of the outcome, was, in my judgment, securely founded in the evidence the judge had heard and, as I have already said, was plainly open to her.
29. I can take the two remaining grounds – that the judge placed too much weight on the 'untested' nature of the placement with I and R while failing to acknowledge that the placement with H's adopters was equally untested; and that she was too focused on avoiding the potential delay and failed to balance the purpose of such delay to B's best interests – together. The judge, in my judgment, was entitled to have regard to these factors, and it was for her to determine how much weight to attach to them. In fact, as we have seen, she did not attribute determinative weight to other of them. As her judgment makes clear (judgment, para 68) their impact was merely to "add … weight to the decision that I have come to."

Lord Justice Davis :

30. I agree.

Lord Justice Underhill :

31. I also agree.