This judgment was handed down remotely at 10.30am on 18 June 2025 by circulation to the parties or their representatives by e-mail.
- In this matter I am concerned with the welfare of TT, a girl born in July 2022 and now aged nearly 3 years old. She was made the subject of an interim care order on 22 January 2024. She is represented by Mr Ralph Marnham of counsel through her Children's Guardian, Mr Desmond Wheway. T is the subject of proceedings under the Children Act 1989 ('the 1989 Act') and the Adoption and Children Act 2002 ('the 2002 Act'), in which the London Borough of Barnet, represented by Ms Kate Hudson of counsel, seek a care order with a care plan of adoption and a placement order in respect of T. T was born in the United Kingdom, but is not a British Citizen. T has one sibling, R, who is placed in long term foster care in country X, a country in Europe.
- T's mother is DL, represented by Mr Philip Squire of counsel. The mother is a citizen of country X and of Middle Eastern heritage. She has applied to remain in the United Kingdom and is awaiting a decision in respect of that application. T's father is MT, represented by Mr David Bannocks of counsel. The father is of Middle Eastern heritage. He sought asylum in country X in 2015, but his application was refused in 2019. He has leave to remain in the United Kingdom until March 2026.
- In circumstances where the parents broadly concede that the threshold criteria for the purpose of s.31(2) of the 1989 Act are met in this matter, by reason of the agreed facts set out in the agreed threshold document dated 9 May 2025, the substantive issue is this case concerns which of the placement options now before the court will meet T's identified welfare needs, having regard to her best interests as the court's paramount consideration.
- The local authority contends that T's welfare needs can only be met through her being adopted. In light of her concessions in the agreed threshold document, the mother does not now argue before the court that she is in a position to meet T's welfare needs on her own. The way she does advance her case was not wholly clear. In his Position Statement on behalf of the mother, Mr Squire contends that "There can scarcely be any doubt that the [maternal] family in [country X] is capable of offering with the mother good enough care" (emphasis added). During the hearing, the mother appeared at times to advance a more circumscribed role for herself, suggesting that T's needs could be met by her maternal family in country X with the mother simply residing with her family. The father asserts that he is in a position to meet T's needs with appropriate support. He opposes T being cared for in country X, either by the maternal family or by R's foster carers, and opposes adoption. Finally, whilst the Children's Guardian initially argued that T's welfare needs will be best met by her being placed with R's foster carers in country X, the Children's Guardian was ultimately limited to contending that it is in T's best interests for the final hearing to be adjourned to permit an assessment of the ability of R's foster carers' in country X to meet her needs. In the alternative, the Children's Guardian does not support T returning to the care of either of her parents and in such circumstances would endorse the final care plan and invite the court to make a placement order.
- In determining this matter, I have had the benefit of reading the bundle prepared for the final hearing. I heard oral evidence from Liselle Harold, Independent Social Worker (hereafter "ISW"), Shannon Wheeler, allocated social worker, Maria Charles, who undertook the viability assessment of the maternal grandmother and maternal uncle, the maternal grandmother, the maternal uncle, the mother, the father and the Children's Guardian. Both the mother and the father had the benefit of interpreters and of intermediaries. Both interpreters and intermediaries ensured that each parent understood the questions being asked of them, the intermediaries ensured that both counsel and the court expressed themselves in a manner commensurate with the parents' level of understanding. I am satisfied that both parents were able to understand and follow the proceedings and that both parents were able to give their best evidence to the court.
BACKGROUND
- In circumstances where all parties agree that the threshold criteria pursuant to s.31(2) of the 1989 Act is met in this case, the background, which is set out in considerable detail in the evidence before the court, can be taken shortly by reference to the trial bundle and agreed threshold document. Whilst various caveats were sought to be introduced by the parents in their respective Position Statements, which I will address further below, the final threshold document has been placed before the court as representing the facts agreed by the parties regarding the harm that T has suffered and is at risk of suffering in the care of the parents.
- The parents' older child R, born on 16 March 2017, was removed from the care of the parents whilst they were living in country X in 2017. The threshold document agreed by the parents states that the difficulties that led to R's removal comprised parental neglect, including missed antenatal appointments, failure to meet R's care needs, failure to respond to R's emotional cues and the parents prioritising their own needs above those of R. When R was first born, the papers disclosed from proceedings in country X indicate that he was placed into a parent child placement, and thereafter lived with his parents in the community. In order to assist the parents, preventative support was implemented 7 days a week via a family consultant and practical family support. The evidence from country X, which has not been challenged, indicates that the parents failed to accept guidance offered and as a result R was not being sufficiently cared for emotionally. In addition, there was a period where the parents went missing with R in July 2017. R was placed in full time foster care in country X in December 2017.
- On 31 October 2023, the parents having relocated to England, the Mother left the family home for a visit to country X to claim benefits, leaving T with the father. On 21 December 2023, the Mother returned to England and thereafter attended the police station with T. The mother made allegations of rape, false imprisonment, and assault against the father and other family members.
- On 22 December 2023, the Father was arrested and placed in police custody. The Father was granted police bail until 14 March 2024. The father's bail conditions prohibited him from contacting the Mother directly or indirectly and from entering any address where the mother may reside.
- The threshold document agreed by the parents states that on 22 December 2023, T was seen to be dirty and smelly and appeared not have been washed in days. The blanket to which T was clinging was stained and smelt putrid. The baby bag had the same putrid smell as T's blanket. Whilst the milk in T's bottle was fresh, the bottle had a build-up of mouldy curdled milk. T was ravenous and very thirsty. The mother used bleached based industrial surface wipes on T. T suffered significant neglect attributable to her carers.
- The police exercised their powers of protection in respect of T on 22 December 2023. On 23 December 2023, T was moved to a foster carer placement. The mother signed an agreement under s.20 of the 1989 Act on 24 December 2023. The father did not wish to sign the agreement in absence of legal advice. On 4 January 2024, child protection agencies in country X informed the social worker of the existence of R and that he had been in foster care in country X since 2017. Those agencies were not aware that R had a sibling. On 8 January 2024, the agencies confirmed their view that the parents laboured under serious cognitive and emotional difficulties. There has been no contact to date between T and R. T does not speak the language of country X and it is not clear to what extent R speaks English.
- Upon being received into foster care, the threshold document agreed by the parents states that T had excessive earwax in her ears, smelt like damp mildew, had dirty greasy hair and looked like she had not been bathed for weeks, with black feet and dirt and debris between her toes and fingers. T had ingrown toenails, her toes were infected and exuding pus. The condition of her toenails caused T pain when she put weight on her feet and this stopped her from walking.
- The threshold document agreed by the parents states that the mother has limited insight into the difficulties with respect R in country X and in relation to the care received by T from her and the father. The mother can be distracted by her own needs, to T's detriment. The agreed threshold further states that should T be placed in her mother's sole care, T's needs would not be met and T would be likely to suffer emotional harm and neglect due to her mother's difficulties in being emotionally and physically available.
- The threshold document agreed by the parents further states that there are serious difficulties in relation to the father's capacity to manage T's basic care needs, including her health and developmental needs. The agreed threshold states that if T is placed in the care of her father, her care and development needs would not be met and the risk to T would be extremely high as she would likely suffer neglect and emotional harm. In his Position Statement for the final hearing Mr Bannocks suggests that the father now specifically disputes these matters; Mr Bannock asserts that the father's position was not set out sufficiently clearly at the advocates' meeting.
- The threshold document agreed by the parents further provides that the relationship between the parents was volatile and toxic in nature, the parents have each made allegations against the other of physical abuse. The agreed threshold states that the nature of the parents' relationship caused emotional harm to T and a risk of physical harm to her. The agreed threshold document further indicates the mother made allegations of serious physical and sexual harm perpetrated against her by the father and that, notwithstanding the mother making such allegations, she continued to leave T in the care of her father thereby failing to protect her.
- The agreed threshold document further provides that the mother demonstrates a superficial understanding of the matters relied on by the local authority related to her allegations of domestic abuse and no understanding of the matters relied on by the local authority in relation to her parenting capacity, that whilst the mother is open to working with professionals, the mother would not make use of the support and that this will place T at risk of significant harm.
- As is clear from the agreed threshold document, subject to the caveat introduced by the father's Position Statement for the final hearing and a dispute between the parents as to which party is more culpable for certain matters, the facts set out above are not disputed by the parents as having resulted in T suffering or being likely to suffer significant harm, that significant harm or likelihood of significant being attributed to the care given or likely to be given to T by her parents. Within this context, four options are now advanced before the court for the future care of T.
- As I have noted, the local authority contends that T's welfare needs can only be met through her being adopted. In that context, the local authority seeks a final care order and a placement order. The local authority has filed its updated statement of facts, updated CPR and updated ADM decision, which endorses the plan of adoption. A statement from a family finder has also been filed which suggests that, were the plan of adoption to be endorsed by the court, it is likely that an adoptive placement would be identified within 3 to 6 months. The care plan of the local authority provides for continuing direct post-adoption contact between T and R, and indirect contact between T and her parents.
- As I have noted, the mother does not now argue before the court that she is in a position to meet T's welfare needs on her own. However, and broadly, the mother contends that she is in a position to contribute to the care of T whilst living in country X with her extended family and that T can be cared for by her extended family, in various combinations. Notwithstanding his concessions in the agreed threshold document, the father asserts that he is in a position to meet T's needs provided he is given support by the local authority at an appropriate level. During the course of the hearing, on behalf of the father Mr Bannock advanced a number of proposals by which he submitted the local authority could provide support for the father's care of T.
- Finally, the Children's Guardian initially sought to argue at this final hearing that T's welfare needs will be best met by her being placed with R's foster carers in country X. However, as I have noted, the submission of Children's Guardian was ultimately limited to the contention that it is in T's best interests for these proceedings to be adjourned for an indeterminate period to permit assessment of the ability of the foster carers in country X to meet T's welfare needs. In circumstances where the Children's Guardian was unable to articulate in clear terms the nature and extent of the assessment proposed, the arrangements for facilitating the assessment in a foreign jurisdiction or the identity of the assessor or the cost and timescales of the assessment, the adjournment sought by the Children's Guardian is currently open ended in nature.
- As to the assessments before the court that inform the court's side-by-side analysis of the foregoing options for meeting T's welfare needs, the court has had the benefit of the following:
i) A cognitive assessment of both the mother and the father, dated 8 February 2024, and provided by Dr Eneberi;
ii) A global psychological assessment of both the mother and the father, dated 1 May 2024. Dr Eneberi was not called to give evidence and her cognitive assessments and global psychological assessments were not challenged;
iii) An Independent Social Work assessment of both the mother, dated 20 May 2024, and of the father, dated 25 May 2024, by ISW Ms Liselle Harold;
iv) An initial viability assessment by Maria Charles of the maternal grandmother and maternal uncle;
v) An expert opinion on immigration law in country X addressing the possibility of T gaining entry clearance for country X; and
vi) An expert opinion from Kathryn Cronin of counsel, dated 4 November 2024, advising on T's immigration status in this jurisdiction and the steps required for T to obtain British citizenship.
- It will be noted that, save for a negative viability assessment, the court has no assessment of the option the mother now advances of the mother living in country X with, and T being cared for by, the mother's extended maternal family, Mr Squire seeking to rely on assembling an assessment from the incomplete information that is available on the extended maternal family in country X. Nor does the court have before it an assessment of the option of T being cared for by R's foster carers in country X, Mr Marnham now seeking an adjournment for an indeterminate period for such an assessment to take place in the circumstances that I have described.
- At a hearing on 15 January 2025, the mother made an application for a further assessment of the maternal grandmother and maternal uncle. That application, made over 12 months after the issue of proceedings and in the context of a negative viability assessment, was refused and instead the court directed statements from the maternal grandmother and maternal uncle setting out their proposals for the care of T. A family group conference with the maternal family took place on 7 March 2025. At that meeting there was a lack of specificity regarding what arrangements would be put in place by the maternal family to care for T in country X and the arrangements for keeping her safe. Within this context, on behalf of the mother Mr Squire argued that the ability of the maternal family, in combination, to meet T's needs is amply demonstrated by their ability to raise the mother's sister following her sustaining a head injury during a police search in her country of birth, without any questions being raised by the authorities in country X regarding their parenting capacity. It remains the case, however, that there is no substantive assessment before the court of the maternal family's ability to care for T.
- With respect to the foster carers of R in country X, Mr Marnham submitted that extensive work has been undertaken to obtain information from the authorities in country X regarding the ability of R's foster carers to care also for T. However, whilst it is clear that a good deal of correspondence has passed between agencies in this jurisdiction and in country X, little actual progress has been made towards achieving a substantive assessment of that option.
- Whilst the local authority has sought to explore the possibility of placing T in country X in light of the position of the Children's Guardian, both through ICACU and then, at ICACU's suggestion, directly with the local workers in country X, the net result of the extensive email communication is that there has never been a settled plan or strategy for obtaining a completed parenting assessment of the ability of the foster carers in country X to meet T's needs. Whilst the local authority recognises its duty to parallel plan, it has not sought, or set in train, the procedure under Art 33 of the 1996 Hague Convention in circumstances where its care plan does not contemplate the placement of T in a foster family or in institutional care in country X. The Children's Guardian does not appear to have sought to advance matters under Art 33 substantially independent of the position of the local authority. Whilst the Children's Guardian seeks to criticise the local authority for not being sufficiently proactive with respect to the option of R's foster carers, the Children's Guardian made no applications ahead of the final hearing for case management directions to address the foregoing matters, notwithstanding that the local authority has made clear since June 2024 that it does not consider a placement with R's foster carers in country X to be in T's best interests.
- In the circumstances, although the Children's Guardian now advances at the final hearing a placement with R's foster carers in country X as the optimal means of meeting T's needs, the court has no completed assessment of that option. Further, the Children's Guardian is unable to articulate the nature and extent of the assessment required, the arrangements for facilitating the assessment or the identity of the assessor and the cost and timescales of the assessment.
- The court has no information with respect to the timescales for any Art 33 request directed to the jurisdiction of country X or the likelihood of such a request being accepted. The proceedings are now in week 68.
RELEVANT LAW
- The law governing the court's decision as to which of the available realistic placement options can best meet the welfare needs of the subject child is well settled and can be summarised as follows.
- By reference to the express terms of s.31 of the 1989 Act, in the proceedings under Part IV of the 1989 Act, the court will limit its consideration to the following issues in respect of T:
(a) Whether the s 31 threshold criteria are satisfied in respect of T;
(b) If so, consideration of the nature of the permanence provisions for T in the care plan;
(c) The arrangements for contact for T; and
(d) What order, having regarding to s.1 of the 1989 Act, should be made in respect of T.
- Where, as in this case, the court is satisfied that the threshold criteria pursuant to s.31(2) of the 1989 Act, the court has jurisdiction to make an order under Part IV of the 1989 Act. In determining whether to do so, having regard to the permanence provisions of the care plan and the arrangements for contact, the court's touchstone is s.1 of the 1989 Act, which provides as follows:
"1 Welfare of the child
(1) When a court determines any question with respect to –
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it,
the child's welfare shall be the court's paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.
(2B) In subsection (2A) "involvement" means involvement of some kind, either direct or indirect, but not any particular division of a child's time.
(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to –
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
(4) The circumstances are that –
(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV.
(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
(6) In subsection (2A) "parent" means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –
(a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.
(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother)."
- In circumstances where, in this case, the court is required to evaluate the proportionality of a care plan for adoption and has before it an application for a placement order with respect to T pursuant to s.21 of the 2002 Act, the court must further have regard to the matters set out in s.1 of the 2002 Act (see N (Refusal of Placement Order) [2023] EWCA Civ 364). Section 1 of the 2002 Act provides as follows:
"1 Considerations applying to the exercise of powers
(1) Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
(5) In placing a child for adoption, an adoption agency in Wales must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
(6) In coming to a decision relating to the adoption of a child, a court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(7) In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act, but does not include coming to a decision about granting leave in any other circumstances.
(8) For the purposes of this section—
(a) references to relationships are not confined to legal relationships,
(b) references to a relative, in relation to a child, include the child's mother and father.
(9) In this section "adoption agency in Wales" means an adoption agency that is—
(a) a local authority in Wales, or
(b) a registered adoption society whose principal office is in Wales."
- Where, as here, the court is required to decide between two or more placement options for meeting T's welfare needs, the court must undertake a process of comparative welfare analysis of the competing placement options (see Re G (A Child) [2013] EWCA Civ 965 at [49]-[50] and Re B-S (Children) [2013] EWCA Civ 1146 at [44]). In determining which of the options for T's care is in her best interests, it is necessary to undertake a holistic evaluation of T's welfare needs and, thereafter, an analysis of each of the options available for meeting her identified welfare needs in order to decide which of the options best discharges the duty to afford paramount consideration to T's welfare throughout her life, in a manner that is proportionate and compatible with the need to respect any Art 8 rights that are engaged (Re W (Adoption: Approach to Long-Term Welfare) [2017] 2 FLR 31).
- Where one or more of the placement options available to the court is placement with a parent, the required welfare assessment has no starting point of a presumption that the best arrangement for T is to be brought up by one or other of her parents, as this would be to assume the likely answer prior to undertaking the required balancing exercise (Re N (A Child) (Care Order: Welfare Evaluation) [2024] EWCA Civ 938). However, full weight must be given to the importance of a family placement, unless it has been established that it would be so contrary to T's welfare that an alternative long-term placement is necessary (see Re M'P-P (Children) [2015] EWCA Civ 584).
- Careful consideration of any extended family who wish to care for the subject child is also important. However, there is no presumption or right for a child to be brought up by a member of his or her natural family (see Re W (A Child) (Adoption: Grandparents Competing Claims) [2016] EWCA Civ 793). Any sibling relationship is an obviously important component of any analysis of a subject child's welfare 'throughout life' because, unlike nearly every other family relationship, a sibling relationship likely to be lifelong (see ABC v Principal Reporter and another [2020] UKSC 26).
- Where one of the options available to the court is adoption, the court should further bear in mind that the granting of a care order with a care plan of adoption is an option of last resort, requiring a high degree of justification to be made only in exceptional circumstances where nothing else will do (Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075 and Re P (A Child) [2014] 1 FLR 824, CA). However, the phrase 'nothing else will do' is not a short cut. Whilst a useful distillation of the proportionality and necessity test embodied in Art 8 and reflecting the need to afford paramount consideration to the welfare of the child throughout his or her lifetime, it is not a substitute for a proper welfare evaluation and proportionality check. The court cannot properly decide that a care order with a care plan of adoption should be made unless the order is proportionate, bearing in mind the requirements of Art 8 and the relevant provisions of the UN Convention on the Rights of the Child.
- Accordingly, as made clear in Re G (A Child) [2013] EWCA Civ 965, [2014] 1 FLR 670, in deciding where T's best interests lie in this case the court must undertake a careful and comprehensive two stage analysis, having regard to the matters set out in s.1 of the 1989 Act and s.1 of the 2002 Act:
i) First, the court must undertake a global, holistic evaluation and analysis of T's welfare needs; and
ii) Second, the court must undertake a comprehensive evaluation of each of the realistically available options for meeting T's identified welfare needs in the degree of detail necessary to analyse the option's own internal positives and negatives in order to reach a decision as to which option is the most proportionate means of meeting those needs having regard to the duty to afford paramount consideration to T's best interests.
- Finally, in this case, the report of Dr Eneberi makes clear that both parents suffer from cognitive limitations. Whilst neither has a formal diagnosis of learning difficulties, I have borne in mind the decision of the Court of Appeal in Re H (Parents with Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59, which made clear that with respect to a parent with learning difficulties, there is an obligation on the court to enquire as to what support is needed to enable parents with learning difficulties to show whether or not they can become good enough parents, that support for parents may have to be long-term extending through the child's minority and the courts must scrutinise carefully evidence that the level of support required by the parent would be on a scale that would be adverse to the child's welfare and should look for options to ameliorate the risk of harm that might result from a high level of support.
DISCUSSION
- Having undertaken a global, holistic evaluation and analysis of T's welfare needs, and having compared side by side the available options for meeting T's welfare needs in order to evaluate which option best meets those needs, I am satisfied that it is in T's best interests, and proportionate, to make a final care order and approve the care plan of adoption. I am further satisfied that it is in T's best interests to make a placement order in favour of the local authority and to dispense with the parents' consent to adoption. My reasons for so deciding are as follows.
Threshold
- As I have noted, the threshold pursuant to s.31(2) of the 1989 Act is agreed in this matter, as set out in the agreed threshold document. As is clear from that agreed document, subject to the caveat introduced by the father's Position Statement for the final hearing and a dispute between the parents as to which is more culpable for certain of those matters, the parents accept that T has suffered and is likely to suffer significant harm and that significant harm, or likelihood of significant harm, is attributed to the care given or likely to be given to T by her parents.
- Given my overall conclusions regarding the parenting capacity of each of the parents, it is neither necessary nor proportionate for the court to determine the competing arguments of the parents as to which was most responsible for the state in which T was seen on 22 December 2023. Likewise, given my overall conclusions regarding the parenting capacity of each of the parents, it is neither necessary nor proportionate for the court to determine the competing arguments of the parents as to which was most responsible for T's lack of cleanliness on 22 December 2023 and the state of T's feet and hands as seen by the foster carers in December 2023.
- In their Position Statements ahead of the final hearing, and during the course of the hearing itself, both parents also sought, to a greater or lesser extent, to litigate the issue of domestic abuse. The local authority sought no findings on that issue beyond the fact that the mother's actions in leaving T in the care of the father demonstrated a failure to protect having regard to the nature and extent of her allegations and neither the mother nor the father sought findings independent of those sought by the local authority. Within this context, and having regard to my wider conclusions regarding the capacity of each parent to meet T's needs, I am satisfied that it is not necessary or proportionate to make findings on this issue beyond those conceded by the parents by way of the agreed threshold document.
Welfare
T's Welfare Needs
- The jurisdictional doorway to making orders under Part IV of the 1989 Act has been opened by the satisfaction of threshold in this case, the first stage of the welfare analysis is to undertake a global, holistic evaluation and analysis of the T's welfare needs. This is best achieved by reference to the factors set out in the welfare checklists in s. 1 of the 1989 Act and s.1 of the 2002 Act.
- T is only just under three years old. In the circumstances, she is too young to clearly express her wishes and feelings, or to understand the implications of doing so. Some idea of her views and preferences may be obtained, however, from other evidence before the court. In particular, T appears to enjoy the contact she has with both her mother and father and demonstrates closeness to them, although I note that Dr Eneberi also noted that T did not show any attachment behaviours to either parent when she observed a stranger in the room, which may be indicative of an insecure attachment style.
- With respect to T's particular needs, including her physical, emotional and educational needs, these fall to be evaluated in the context of the expert assessment undertaken of T by Dr Eneberi. Dr Eneberi considers that whilst T does not present with any internalising or externalising difficulties requiring intervention/ specialist action, T's threat system appears hypersensitive to loud noises and adults raising their voices or saying 'no'. Dr Eneberi considers that there are several possible explanations for T's difficulties. First, it is highly likely that T has been negatively impacted by her experience of neglect in the home context, it being evident that T's developmental needs were not consistently or adequately met. Secondly, Dr Eneberi considers it is possible that T's development has been negatively impacted by her exposure to domestic incidents in the home environment. Thirdly, Dr Eneberi opines that it is possible that T's premature skills may be linked to the heritability of reduced cognitive skills, however it is too early to measure.
- Within this context, Dr Eneberi considers that T requires a caregiving adult who is able to provide her with stability, emotional warmth and containment and that she needs reparative care. It is clear beyond peradventure that T needs experienced, dedicated carers who are able to understand and provide reparative care and who can provide her with a settled, secure and stable home for the duration of her minority and beyond, to allow her to develop to her maximum potential. As noted by the ISW, in these circumstances T's primary need is permanency.
- Each of the options before the court for meeting T's welfare needs will result in a change of circumstances for her, in the form of a move from her current placement. That disruption will take place following the disruptions caused to her care to date by the actions and omissions of her parents, as set out in the agreed threshold document. Such disruptions are antithetic to T's welfare and increase the need for the option chosen to result in a settled, secure and stable home for the duration of her minority and beyond, that will minimise the chance of any further disruption for T consequent upon a further change of circumstances. A placement for T with R's foster carers would, I am satisfied, be a change of circumstances that would greatly effect T. Whilst she would be enabled to live with a member of her original family, were that option to be pursued, T would also be required to move to another country, whose language she does not speak, and live in long term foster care with an older sibling who she has not met and has no prior relationship with.
- Consideration of the likely effect on T of any change in her circumstances also includes in this case, in circumstances where the local authority advances a care plan of adoption, the need to consider the likely effect on T throughout her life of having ceased to be a member of the original family and become an adopted person. Adoption will necessarily mean that T will not grow up in her birth family, and will be deprived of the opportunity of family life with them, exposing her to separation and loss. Against this, given the deficits I identify above with respect to the parenting capacity of her mother and father and the difficulties I am satisfied would accrue from the proposal for her maternal family to provide her with care, the effect of T ceasing to be a member of her original family, by becoming an adopted person, increases the chances of her having a settled, secure and stable home for the duration of her minority and a home which will be hers throughout her life. This is in contrast, at least legally, to the position for T were she to be placed with R's foster parents, in which the circumstances of her placement would pertain only for the duration of her minority and not throughout her life, as compared to the position were she to be adopted.
- With respect to T's age, sex, background and any characteristics of her which the court considers relevant, in circumstances where the paramount consideration of the court must be T's welfare throughout her life, it is important to note that T is not yet three years old. Within that context, any placement for T will need to meet her needs for the majority of her minority and, ideally, should be capable of providing an enduring family life beyond the end of her minority. Within this context, T is of an age where, ordinarily, adoption would be considered more advantageous for T than placement in long term foster care. With regard to T's background and characteristics, T is a national of country X but does not speak the language of that country and has not lived for any significant period in the jurisdiction of country X. T has become fluent in English. She is of Middle Eastern heritage from a Muslim family. The family's first language is Arabic, which was the language that T was used to, until removal. Within this context, she has a need to be able to learn, understand and have experience of her family background and heritage and those who share it with her.
- With respect to any harm which that T has suffered or is at risk of suffering, as set out above, the threshold criteria in s.31(2) of the 1989 Act are met in respect of T. It is not disputed that T suffered and is likely to suffer significant harm, that significant harm or likelihood of significant harm, is attributed to the care given or likely to be given to T by her parents.
- With respect to the questions of how capable each of her parents are, and any other person in relation to whom the court considers the question to be relevant, is of meeting T's needs; the relationship T has with relatives, with any person who is a prospective adopter with whom T is placed, and with any other person in relation to whom the court considers to be relevant; 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; the likelihood of any such relationship continuing and the value to the child of its doing so; and the wishes and feelings of any of the child's relatives, or of any such person, regarding the child, I will deal with these when examining the options before the court, save in one respect as follows.
- As noted, T has a sibling, R. As the Children's Guardian pointed out during the course of the hearing, sibling relationships represent the most enduring of family relationships. A continuing relationship with R represents an opportunity for T to maintain a link with her birth family and to learn about, understand and have experience of her family background and heritage and those who share it with her. In ABC v Principal Reporter and another [2020] UKSC 26 at [1] the Supreme Court observed that siblings can be as important as parents and are a potentially powerful influence on development:
"Siblings can be as important as parents in the lives of those who have them. While parents have been likened to the doctors doing their ward rounds to see the bigger picture, siblings have been likened to the nurses: they are there every day. "These siblings are often 'fellow travellers' through adversity or significant life events; they can act as a source of support for some children and a source of conflict for others. For these reasons, siblings are a potentially powerful influence on development ..." (White & Hughes, Why Siblings Matter: The Role of Brother and Sister Relationships in Development and Wellbeing (2018))."
- Having identified T's welfare needs, the second stage of the analysis is to undertake a comprehensive evaluation of each of the realistically available options for meeting the T's identified welfare needs. The analysis will be carried out in the degree of detail necessary to analyse the options' own internal positives and negatives in order to reach a decision as to which option has the most proportionate means of meeting those needs, having regard to the duty to afford paramount consideration to T's best interests.
- Having regard to the outcome of the assessment of the parents, and the concessions made by them in the agreed threshold document, it might be questioned whether either can be said to be a realistic option for meeting T's welfare needs. However, the Court of Appeal has made clear that the question of what is or what is not a realistic option falls to be properly evaluated at an early stage in the proceedings. Once the final hearing starts and the court is immersed in the detail of the issue of whether the children should be placed with a parent or in an alternative placement, the question of whether one option or another is realistic is irrelevant and there is a need at that stage for an ordinary full welfare evaluation of the options that are before the court (see Re W-C (Children) [2017] EWCA Civ 250). In the circumstances, with respect to the second stage of the analysis, in undertaking a comprehensive evaluation of each of the realistically available options for meeting the T's identified welfare needs, I have considered the position of both the mother (as advanced at this hearing) and the father, in addition to the option of placement with R's foster carers in country X and that of adoption.
The Mother / Maternal Family
- It is important to note that the mother has a number of positive attributes. She loves T and has maintained a fierce ambition to resume T's care. Were T to be returned to her mother's care, or on the mother's revised case, to the care of the mother's family with whom the mother too would reside, T would be able to retain a physical, emotional and legal relationship with her mother, as her mother. Being placed away from her mother would result in the loss for T of that relationship and make it be harder to maintain contact with heritage, culture and religion. Regrettably however, there are in my judgment very significant impediments to the implementation of her case, even as now advanced by the mother in the context of a primary caring role for her extended family.
- The mother's concession that she is not in a position herself to parent T is well made. The mother gave her evidence without any guile and readily conceded evidence not advantageous to her, for example admitting to asking for contact with R to stop so that social services in country X did not discover she was pregnant with T and conceding that she had kept the fact of R's removal from the English social workers. It was apparent from her oral evidence that the mother has little insight into the nature and extent of her parenting difficulties, telling the court that there was no other reason for R's removal beyond her lack of parenting experience at that time.
- The impression the court formed of the mother reflected assessments of Dr Eneberi and the ISW. Dr Eneberi described the mother as manipulating the truth at the assessment when discussing the involvement of social services in country X. Dr Eneberi, in evidence that was not challenged, indicated that whilst his assessment of the mother does not indicate significant cognitive impairment, a specific learning disability that would require specialist adjustment or intervention and she does not suffer from a mental health disorder, her skills fall within the 'borderline' and 'low average' range of cognitive functioning. Dr Eneberi assessed the mother as having poor reflective capacity; poor problem-solving strategies and strategies that masked difficulties from being identified and made the subject of professional help; that she lacks insight into the features of her psychological functioning, which may create difficulty in emotionally attuning to T and responding to her emotional needs sensitively and consistently with negative implications for her ability to support T's social and emotional development over the course of her minority; and that she has poor insight into the harm caused by exposure to domestic violence and that features of her personality may increase the likelihood of domestic incidents, should she enter into a relationship with a man who has a need for power and control in relationships.
- In circumstances where the mother lacked any understanding of the concerns related to her and her parenting capacity, Dr Eneberi opined that the mother had little ability to make use of any support that is problem-focused and/or relies on a parent's honest appraisal of what they are finding difficult, or that they need support with. Dr Eneberi considered that the mother's parental decisions are informed by psychological and emotional features that would not be sufficiently addressed in an educational programme. Within the foregoing context, whilst Dr Eneberi was able to recommend that the mother undertake work with respect to domestic abuse, Mentalisation Based Therapy (if the mother is able to provide a more honest account), or individual psychotherapy (it the mother maintains her position of denying negative experiences) and parent infant intervention, she was clear that such interventions would be long-term and progress and change is unlikely to be seen within T's timescale.
- I accept the evidence of the Children's Guardian that the comprehensive psychological and parenting assessments provide compelling evidence of the mother's shortcomings as a parent and her vulnerabilities, which demonstrate a lack insight and understanding into the Local Authority's concerns and demonstrate that T would be at significant risk if in the care of the mother, with little prospect of change.
- The impression the court formed of the mother also reflected the assessment of the ISW. The ISW was not able to recommend the mother as a carer for T, in circumstances where she assessed the mother as not having insight into T's needs, struggled to mentalise her needs and to evaluate risk. The ISW considered that the mother could be impulsive, prioritises her own needs, is not able to consider the consequences of her actions for herself or T, struggles with effective communication, poses household and community risks and that the mother's communication difficulties impact on her ability to develop skills and work with others. The ISW did not change her opinion, notwithstanding careful cross-examination by Mr Squire on behalf of the mother. The ISW reiterated that the mother is not equipped to be the sole carer of T, continues to have difficulty in anticipating and meeting T's needs, is not able to pick up on cues, struggled to provide a coherent account of her experiences and lifestyle and was at times untruthful and only made admissions when provided with alternative information. The ISW restated her view that the risk of harm to T in the care of her mother is too high and that the prognosis for change is poor due to the longstanding nature of the concerns, the mother's limited insight into concerns and her difficulties receiving guidance and working with professionals. Within this context, the ISW continues to assert that T would be likely to suffer emotional harm and neglect in her mother's care due to her mother's difficulties in responding consistently, her difficulty reading emotional cues, and her difficulties in being emotionally and physically available.
- Within this context, the mother concedes in the agreed threshold document that "Should T be in her mother's sole care, her care and developmental needs would not be met and T would be likely to suffer emotional harm and neglect due to her mother's difficulties in responding consistently, her difficulty reading emotional cues and her difficulties in being emotionally and physically available." The mother likewise concedes by way of the agreed threshold document, that she demonstrates a superficial understanding of the matters relied on by the local authority related to her allegations of domestic abuse and no understanding of the matters relied on by the local authority in relation to her parenting capacity. Further, the mother concedes by her agreement to threshold, that whilst the mother is open to working with professionals, the mother would not be able to make use of the support.
- Whilst the mother does not, in the foregoing circumstances, put herself forward as a carer for T, the difficulties identified in the assessments of Dr Eneberi and the ISW indicate the significant task that would face the maternal family in providing support for the mother in her care of T, if that is what is proposed, it being unclear even at the conclusion of the final hearing what the precise involvement of the maternal family would be. In any event, it was clear from the mother's own evidence that she would intend to lean heavily on her family for support, the mother telling the court that "To help to understand more and more of what the child needs, I would expect my family to give me help and advice" and "If I am not educated to understand T, they will help me." With respect to the role of the maternal grandmother, the mother told the court that "She said she will never leave me alone because she sees I need help."
- Within this context, beyond a negative viability assessment, the court has no assessment of the capacity of the extended maternal family to support the mother's care of T, or indeed even a clear picture of what is proposed in that regard. What evidence the court does have raises significant concerns about the ability of the maternal family to either support the mother's care of T, or to safeguard T from the deficits in the mother's parenting. Ms Charles stood by her negative viability assessment of the maternal grandmother and maternal uncle, noting in particular that the maternal grandmother claimed that the mother had no problems and did not volunteer any difficulties. Whilst Mr Squire put to Ms Charles that T's needs could be met "if each member of the family contributes in their random way", this was a proposition she was not prepared or able to comment on. The ISW also spoke to the maternal grandmother and did not consider that the mother's deficits would be ameliorated sufficiently by support from the maternal family.
- The court made clear on 22 January 2024, at the very first hearing, that the mother should put forward alternative carers. She did not do so. I accept the evidence of the allocated social worker that a further assessment of the option advanced by the mother at the final hearing is not commensurate with the timescales for T at week 68 of the proceedings and in circumstances where there is no clear proposal for care by the maternal family. The social worker rightly described the position of the maternal family in this regard as "quite blasé" having regard to the mother's difficulties. The social worker assessed the Family Group Conference as not having given any indication of the support available and as reinforcing the view that the extended family do not understand the level of support required. I further accept the evidence of the social worker that the position advanced by the mother will not provide sufficient structure within which to meet T's significant needs, including the need for carers able to give reparative care, and will mean it will be very difficult for T to build a strong relationship with a primary carer.
- The assessment of Ms Charles, the ISW and the allocated social worker, were reflected in the evidence that the maternal grandmother gave to the court. She demonstrated only a superficial insight into difficulties of mother. The maternal grandmother contended, as had the mother, that the mother struggled simply because R was her first child and she lacked parenting experience. Whilst she denied it in evidence, I accept that the maternal grandmother stated at the Family Group Conference that the difficulties in respect of R were "everyone's fault". Further, the maternal grandmother was forced to concede that she had not sought to maintain contact with T, the last time she had had contact with her being in 2023, notwithstanding that she asserted she has a passport from country X which would enable her to travel to this jurisdiction. The parties were content not to cross-examine the maternal uncle in circumstances where his statement provides no detailed proposal for T's future care.
The Father
- It is again important to note that the father has a number of positive attributes. Like the mother he loves T and has too maintained a fierce ambition to resume T's care. There are many examples of good quality contact between father and daughter. The father's oral evidence, however, also demonstrated clearly to the court that he lacked insight into the presentation of T and either denied all responsibility for that harm, or minimised it when forced to accept matters that occurred in his care. As with the mother, the court's concerns regarding the father's capacity to meet the needs of T were corroborated by the unchallenged reports of Dr Eneberi.
- Dr Eneberi assessed the father's cognitive skills as predominantly falling into the 'borderline' impaired range. Due to the difficulties noted in the interpretation of the father's VCI score, Dr Eneberi could not comment on whether the father's intelligence quotient would be classified within the learning disability range, but considered it very likely that his intelligence quotient falls within the impaired or low average range by reference to a cognitive assessment created for Arabic speakers. Dr Eneberi considered that this would have a negative impact on the father's parental functioning, with the father taking longer to process information and think through problems. Within this context, Dr Eneberi considered that the father would require significant support from children's services if he were to provide T with "good enough" care. Dr Eneberi considered that the father displays controlling traits in interpersonal relationships, with the father not able to keep T safe from psychological harm if he were to enter into another intimate relationship with someone who does not share the same values as him, or who displays behaviours that he does not like. Dr Eneberi expressed significant concerns about the father's ability to meet T's developmental needs. Whilst he had a good understanding of the reason for local authority concerns and his daughter's subsequent accommodation in care, the father dismissed concerns regarding his parenting of T. Dr Eneberi considered it an unknown whether the father would be able to retain information learnt on such courses and/or whether he would be able to apply any learning to his parenting practices. Dr Eneberi considers that the father demonstrated limited reflective capacity and T would be at significant risk of neglect if she were to be cared for by the father exclusively.
- Once again, I accept the evidence of the Children's Guardian that the comprehensive psychological and parenting assessments provide compelling evidence of the father's shortcomings as a parent and his vulnerabilities, which demonstrate a lack insight and understanding into the Local Authority's concerns and demonstrate that T would be at significant risk if in the care of the father, with little prospect of change
- The assessment of the ISW reinforces the concerns regarding the father's capacity to meet T's needs. The ISW concluded that the father minimised concerns, demonstrated a high level of personal need, struggled significantly in many domains of parenting, prioritised his own needs above T's, failed to identify any difficulties with parenting, had little understanding of when childhood stopped (I am satisfied that he told the ISW that T would reach the age of maturity at 9 years old) and did not understand puberty and development. The father is also unable to assess risk and struggled to accept advice and guidance. He is not able to problem solve or make appropriate decisions when faced with multiple dilemmas. As with the mother, the ISW did not materially change her assessment during the course of cross-examination. The ISW made clear that conclusions she reached were independent of allegations of domestic abuse made by the mother. During cross examination, the ISW summarised her assessment as follows:
"I don't think he has changed and grown, he should have had more knowledge from the extent of work he says he has done, common illnesses, temperatures, the importance of weight. He should have much more knowledge as a man who parented a child. It highlights the limited learning in the 8 years, it was the lack of progress and learning in that time."
- Within this context, the ISW considered that the father was not open to her advice and guidance and that the support the father would require to safely meet the needs of T would, in effect, need to be in place 24 hrs a day, which was not realistic where the father regularly prioritises his own needs and where considerable support to date has resulted in no significant change in his parenting capacity. In such circumstances, the ISW was unable to recommend a return of the child to the father's care, even with support, without T being at risk of serious harm. In these circumstances, I accept the evidence of the allocated social worker that the work required with the father is not commensurate with the timescales for T.
- Within this context, the father conceded in the threshold document that "If T is placed in the care of her father, her care and development needs would not be met and the risk to T would be extremely high as she would likely suffer neglect and emotional harm." Whilst, by Mr Bannock's Position Statement, that concession appears to be withdrawn, I am entirely satisfied on the evidence before the court that it is accurate to state that if T is placed in the care of her father, her care and development needs would not be met and the risk to T would be extremely high as she would likely suffer neglect and emotional harm. For the avoidance of doubt, whilst disputed by the father, I am satisfied that there are serious difficulties in relation to the father's capacity to manage T's basic care needs, including her health and developmental needs.
Foster Carers in Country X
- Notwithstanding placement of T with R's foster carers in the jurisdiction of country X being advanced by the Children's Guardian as the option that is in T's best interests, the evaluation of that option is fraught with challenges.
- Despite the Children's Guardian having been on notice since at least July 2024 that the local authority did not consider this option capable of meeting T's needs, no sufficient steps have been taken to place before the court a comprehensive assessment of the ability of R's foster carers to meet T's needs. Whilst a large amount of email correspondence has taken place with agencies in country X, this has been to no clear end. The parties appear to have assumed that at some point, if a sufficient number of emails were exchanged, clarity would emerge from the ongoing exchange as between jurisdictions as to how the placement was to be assessed. This never happened. For example, even though it is clear from the email exchange that it would be necessary for the authorities in country X to complete an obligatory assessment before T could be placed with R's foster carers, no clear steps appear ever to have been put in place to ensure such an assessment was completed and placed before this court.
- It is clear that, at a high level of generality, there are potential advantages to a placement for T with R's foster carers. Such a placement would, if she is not able to grow up in the care of one or other of her parents, permit T to grow up with a sibling and blood relative with whom she may have the most enduring family relationship, enabling her to maintain a sibling bond with R with greater intensity through residing together than might be possible through contact, promoting a sense of family. Against this however, and again at a high level of generality, there are considerable disadvantages to such a placement.
- Any placement of T with R's carers would be a foster placement which would, on the information currently before the court, come to an end upon T attaining the age of majority. In the circumstances, T would not, legally, remain throughout her life a member of the family in which she grew up, reducing certainty and security for her. T is not yet three years old and, within that context, a placement with R's foster carers would not provide the level of permanency realistically available at her age through an adoptive placement. Subject to the procedures that apply in country X, T would also continue to be the subject of regular reviews by state agencies, impacting on the security and consistency of her family life. From T's perspective, a placement with R's foster carers would require her to be placed in a foreign jurisdiction unfamiliar to her and in which she does not at present speak the language with a sibling in respect of whom she has had no prior contact or relationship. This is in the context, as the Children's Guardian accepted, of the siblings not having a commonality of history and shared life experiences, with entirely different experiences of being parented by their parents (within this context, Dr Eneberi observed that given R's accommodation in care and T having previously resided in her parents' care, there may be tensions between the siblings).
- Most fundamentally, as at the final hearing, the court lacks any reliable assessment of the capacity of R's foster carers to meet T's needs, notwithstanding that this is the option advanced by the Children's Guardian as being the most proportionate means of meeting T's welfare needs. Nor is it possible to say when such an assessment would be available.
- In oral evidence, the Children's Guardian acknowledged that a detailed assessment would be required. There is no guarantee that such an assessment would be positive. As I have noted, it is clear that country X would wish to do their own assessment, but no effective steps have been taken to advance such an assessment. No application has been made by the Children's Guardian for such an assessment nor, as I shall come to, are any choate proposals for such an assessment advanced by the Children's Guardian in support of his application to adjourn the final hearing. There is also no information before the court on contingency planning. Accordingly, were the placement to breakdown, there is no clear indication of what the contingency plan would be, either for her to remain in country X or return to this jurisdiction. There is little to no information before the court with which to evaluate the chances of such a placement breakdown. It is not possible at the present time to ascertain the timescales for any move for T to the jurisdiction of country X. All this demonstrates, as the Court of Appeal recently observed in M (A Child) (Placement Order) [2025] EWCA Civ 214, that there are very considerable disadvantages to commencing an uncertain and potentially protracted assessment process in proceedings that have already been in train for over a year.
Placement for Adoption
- For a child, especially a child of T's age, a placement for adoption has considerable advantages. In D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948, Lord Justice Peter Jackson reiterated the following matters with respect to long term fostering as against adoption by reference to a number of earlier decisions set out in the local authority's submission in that case, which apply with equal force in this case:
i) Long term foster care is a precarious legal framework for any child, and particularly a young child (Re LRP [2013] EWHC 3974 (Fam));
ii) Foster placements, long or short term, do not provide legal security. They can and often do come to an end and children in long term care may find themselves moved from one home to another (Re LRP);
iii) Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents (Re LRP);
iv) A long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. A long term foster child cannot count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted (Re LRP);
v) The commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement (V (Children) [2013] EWCA Civ 913);
vi) Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to "feel" different from fostering (V (Children));
vii) The sense of belonging for an adopted child is not 'transactional' but arises from the mutual commitment between adoptive parents and children in those cases where adoption is appropriate (F-S (A child: Placement Order) [2021] EWCA Civ 1212);
viii) Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips) (V (Children));
ix) Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time (V (Children));
x) Prospective adopters are required to submit themselves to a rigorous and thorough assessment process over many months and can be confidently expected to provide extremely good parenting to any child who is matched with them in all areas of his or her development (Re LRP); and
xi) It is now well recognised that the traditional model of closed adoption without contact is not the only arrangement that meets the needs of certain adopted children (F-S (A child: Placement Order)).
- Adoption also has acknowledged disadvantages. An adoption order severs the legal ties, and the connection, between a child and his or her birth family, exposing the child to separation and loss. The child ceases to be part of the family into which he or she was born and becomes a member of another family. Adoption is, therefore, often described as a draconian outcome. In this case, in addition to placing limits on the contact between T and her parents and the maternal extended family, it may also interfere with the development of a relationship with her sibling, R.
- However, in line with developing understanding of the importance for some children of post-adoption contact, the local authority will be working with the authorities in country X to promote contact between T and her brother, R. Dr Eneberi encouraged the social work team to liaise with the local authority in country X to ascertain how the sibling relationship can be developed and/or maintained over time. Taking into account recent guidance, together with the fact that the local authority wishes to promote contact between T and her brother, knowing that her brother has ongoing contact with his parents, the local authority accepts that it would be appropriate when searching for adopters to try to identify adopters who are open to direct, face to face post adoption contact in addition to the letter box contact.
- Adoption also requires an adoptive placement to be identified by seeking prospective adopters who are 'matched' to the welfare needs of the child to be adopted. This can lead to delay. In this case however, as I have noted, the local authority has filed its updated statement of facts, updated CPR and updated ADM decision, which endorses the plan of adoption. A statement from a family finder has also been filed which suggests that, were the plan of adoption to be endorsed by the court, it is likely that an adoptive placement would be identified within 3 to 6 months. The care plan of the local authority provides for continuing direct post-adoption contact between T and R, and indirect contact between T and her parents. In Re T (Placement Order) [2008] EWCA Civ 248, [2008] 1 FLR 1721, the Court of Appeal held that uncertainty about the prospects of finding an adoptive placement does not in itself rule out the making of a placement order.
CONCLUSION
- Having evaluated side by side the competing options for meeting T's welfare needs as I have assessed them to be and having regard to T's best interests as my paramount consideration, I am satisfied that T's adoption will best meet those welfare needs. Whilst I accept that an adoptive placement will sever the links between T and her parents, subject to any continuing post-adoption contact, and will require the development of T's sibling relationship with R to be achieved through post-adoption contact, I am satisfied that having regard to the nature and extent of T's welfare needs assessed holistically, and the manifest advantages of adoption for a child of T's age, a placement for adoption best meets her needs. In circumstances where the care plan provides for the promotion and development of T's sibling relationship with R through post adoption contact, I am satisfied that this plan provides for the proper fostering of that sibling relationship with the advantages that pertain.
- Having undertaken a comprehensive evaluation of the relevant advantages and disadvantages of each competing option, and determined that having regard to the nature and extent of T's welfare needs assessed holistically, a placement for adoption best meets her needs, at this point I must undertake the 'proportionality cross check' and consider whether 'nothing else will do' when measured against the yardstick of necessity and proportionality that that phrase embodies. Having regard to the matters set out above, I am satisfied that T's parents are not in a position to meet her needs due to the deficits in their parenting capacity set out in this judgment. The option now advanced by the mother of, it would appear, her extended family caring for T in an unspecified arrangement remains unassessed and, in any event, on the evidence before the court, is not capable of meeting T's needs having regard to the nature and extent of the mother's own needs and the continuing risk she poses to T's welfare. The option of the placement of T with R's foster carers remains unassessed and cannot be effected within timescales commensurate with T's urgent need for permanency. In the circumstances, I am satisfied that adoption, with the advantages I have outlined, is the necessary and proportionate means of meeting T's assessed welfare needs.
- In the circumstances, I am satisfied that having regard to s.1 of the 1989 Act and s.1 of the 2002 Act, it is in T's best interests to make a care order in favour of the local authority. I am further satisfied that it is in T's best interests to make a placement order in respect of T and to dispense with the parents' consent to the adoption of T. I am conscious that in reaching the decision that I am going against the recommendation of the Children's Guardian. I am not, however, able to accept his analysis, which I must observe contained some concerning features.
- The analysis of the Children's Guardian recommendation that T's welfare needs would be best met by placement with T's foster carers in country X, albeit that his position was necessarily moderated at this hearing to calling for the assessment of that option, was at best simplistic. In stating that his "paramount" concern was the siblings living together, the analysis of the Children's Guardian amounted to little more than 'placement with a sibling is good'. The Children's Guardian conceded he had made no application in June 2024 for this option to be assessed, when it became apparent that the local authority did not consider long term foster care for T to be in her best interests and that he had not himself spoken with R or with R's foster carers (in this context, I note that the Children's Guardian described the lack of knowledge about the extended maternal family, the absence of assessment and the time the assessment would take as "a huge hurdle" to the mother's case). Notwithstanding Mr Marnham was instructed to submit to the court that the final hearing should be adjourned to permit the assessment of the option of R's foster carers, he was not able to provide the court with the identity of the assessor proposed, the timescales for such an assessment, details of the costs of the assessment, nor any information of the timescales for placing T in country X, including the timescales for concluding the Art 33 process, were such an assessment to be positive.
- It is concerning in this context that in his oral evidence the Children's Guardian appeared to be willing, after well over a year of litigation in respect of a child who is not yet 3 years old and without placing before the court any of the details that would be expected to support an adjournment application, to countenance a further significant and unspecified delay whilst steps were taken to remedy the entirely inchoate proposals being advanced by the Children's Guardian at final hearing, no steps having been taken to do so when it became apparent nearly a year ago that the local authority were not seeking the option contended for by the Children's Guardian.
- I will invite counsel to draft a care order and a placement order for my approval accordingly.