England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT RHYL
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF L, J, K and E (CHILDREN)

		5th February 2016

JUDGMENT 5^th February 2016

HIS HONOUR JUDGE GARETH JONES:

1. I have before me applications for Care Orders with regard to a sibling group of four children, and applications with regard to Placement Orders for the two youngest children in the group.
2. The parties and their legal representation are as follows: The applicant is X County Council, represented by Mr Sellars. The children's mother, who I shall identify as "the mother", is in her early-forties and is represented by Miss Williams. The children's father, who I shall identify as "the father", is also in his early-forties and is represented by Miss Parry. The father shares parental responsibility for the children. The children (three boys and a girl) are represented by their Guardian, Mr Taylor, and by their solicitor, Mr Dylan Lloyd-Jones.
3. The children are L, born on 21^st February 2003, who is very nearly thirteen years-old; J, born on 10^th September 2005, who is ten years-old; K, born on 10^th June 2010, who is five and a half years-old; and E born on 10^th February 2012, who is very nearly four years-old.
4. The Local Authority issued the applications for Care Orders on 6^th August 2015. The children had previously been accommodated under section 20 Children Act 1989, since 24^th March 2015, when they had been placed with local authority foster carers. I made four Interim Care Orders on 27^th August 2015, which confirmed the children's removal from parental care. The case was timetabled for this Final Hearing. Originally it was to take place at the end of January 2016, but the dates were subsequently modified very slightly which took the case outside the 26 week period, the time limit being extended under sections 32(5) and 32(7) Children Act 1989. I conducted the IRH Hearing on 17^th December 2015.
5. I have read the relevant documentary evidence, the statements and the reports which have been prepared. I have heard oral evidence from:

(i) the father at the outset of this hearing;

(ii) the Local Authority's key social worker, Miss Kizilaslan;

(iii) Miss Jane Jones, a therapeutic social worker of the Local Authority; and

(iv) the Children's Guardian.

6. The mother and the father, who were present at the outset of this hearing (and have been more or less throughout the hearing) were tearful and unable to remain, either in the Courtroom or the Court precincts throughout the first day of the hearing. They were present throughout most of the second day and they have been present today until a few moments ago when I announced my decision.
7. The father, having found the courage (despite his sadness) to give brief oral evidence, with my permission was permitted to leave on the first day of the hearing, as was the mother. The mother did not wish to give oral evidence, and I did not force the issue with her.
8. The mother and the father filed signed final statements of evidence setting out their position, and each has accepted that they could not realistically care for the four children, and the Court has proceeded on that basis.
9. The hearing began on 3^rd February 2016, it continued on 4^th February 2016, and concludes today, 5^th February 2016.

The background

10. The mother and the father have been in a relationship for approximately seventeen or eighteen years. The mother has two older children by an earlier relationship; S born in 1992, and D born in 1994. The mother at that time was resident in Y [name of town given]. After the breakdown of this relationship the mother moved to North Wales, and eventually S moved to live with her birth father (see E30). D spent two intervals living with his birth father until his adulthood. He now has two children of his own, and he lives in Y [name of town given] with his partner. S continues to live in Y [name of town given] and all of these matters are referred to at page E31.
11. The parents in these proceedings have a long history of involvement with Social Services. L was one of twins, his twin sibling unhappily not surviving.
12. The father has described his relationship with the mother as having "a lot of ups and downs" (see E31). That is borne out by the documentary evidence (which is considerable). However, they remain a couple and there is no change anticipated in that position.
13. The Local Authority involvement started in or about 2004. The children have been subject to five separate periods of child protection registration (see E44). In total, prior to the most recent period of registration in January 2015, the children have been registered for approximately 50 months (in excess of a four year period).
14. The father has a chronic history of substance misuse. The mother's difficulties with drug and alcohol are not so well documented, but there have been occasions when she has misused substances, whether illicit drugs or alcohol.
15. There is a letter from a substance misuse social worker confirming the following information in relation to the father (see E59 to E60):

(i) in April/March 2015, he was using crack cocaine on a daily basis and he tested positive;

(ii) at the end of May 2015, he was still using crack cocaine and opiates, and had tested positive;

(iii) in early September 2015, he was smoking heroin and using crack cocaine on a daily basis;

(iv) in October 205, he tested positive for opiates and cocaine; and

(v) he had only attended three out of eight arranged appointments with his substance misuse worker.


16. These instances of involvement with Class A substances (traditionally the most addictive and harmful) coincide with the currency of these proceedings. The father has indicated that he has completed home detox (see paragraph 26 of his final statement of evidence), however, with his past history this is early days indeed.
17. From my assessment of her, the mother appears to have gone to pieces completely. She has been beset by depression recently and she attended hospital following an overdose. Both mother and father presented abjectly in Court on the first day of this hearing. They at least have the insight to appreciate that they could not care for the four children properly at this time.
18. What have been the consequences for this family unit of this parental conduct? The father has admitted that he could spend up to £150 per day on crack cocaine (see E25). That may not be a continuous level of expenditure, but to feed this addiction would inevitably impact upon the family unit, for instance there are debts incurred to drug dealers. The children were introduced to and became enmeshed in a dangerous criminal sub-culture where violence and threats of violence became the norm, and their safety was compromised. Basic necessities for the children were neglected; food, clothes, their domestic environment, rent, pocket money, all of these things suffered and the physical circumstances of the children deteriorated.
19. The parents argued amongst themselves (probably because of the pressures within the household) and this spilled over into domestic acrimony and violent confrontation. The father was drawn into criminal activity to feed his habit, and there was the ever present prospect of Police involvement or prosecution, and ultimately imprisonment, which threatened the security of the family unit.
20. These are the pitfalls of chronic drug addiction. There is a belief that drug addiction can be controlled and managed in some way. I reject that contention; in my experience almost inevitably, when parents have a sustained history of involvement with drugs (particularly Class A drugs of this type) their parenting inevitably deteriorates.
21. In short, the children's family life with these parents (prior to their removal) became, in my judgment, a pretty miserable experience for the four of them. The older children probably recognised this. L and J appear to harbour a resentment or anger at their parents' inability to make the changes needed to bring this family unit back together. I was told, for instance, that L refuses to have telephone contact with his parents because it "messes with his head" (see C43).
22. Physical and emotional harm has resulted, or was in prospect for the children had they not been removed from parental care.
23. The threshold of "significant harm", pursuant to section 31(2) Children Act 1989, was found proven by me in a Court Order (see B32). That identifies a number of key factors:

(i) neglect, both physical and emotional;

(ii) domestic violence;

(iii) parental substance misuse;

(iv) developmental delay;

(v) missed health appointments; and

(vi) criminal threats to the children's safety.

24. It is recorded that the father has seven previous convictions for fifteen offences (see section F). The conviction in 2003 for assault related to the mother.
25. The mother has two cautions.
26. The non-conviction information starts from 2004, in the case of the mother, and 2001, in the case of the father, and it includes a catalogue of domestic incidents going back to the early days of their relationship.
27. The effect of domestic violence upon young children is now recognised by the extended definition of "harm" under section 31(9) Children Act 1989.
28. In December 2014, and January 2015, J was seen begging outside a supermarket in X Road [name of road and town given] (see F3).
29. In January and February 2015 there were referrals about lack of food for the children, and J and L were truanting from school, and playing the gaming machines in the Z Arcade [name given].
30. By the end of February 2015 there was an anonymous call to the Police reporting drug dealing at the parents' home (see F21).
31. On 24^th March 2015, the North Wales Police executed a search warrant under section 23 Misuse of Drugs Act 1971, at the parents' home. No drugs were found but home conditions were unacceptably poor, and the children were voluntarily accommodated.
32. It was disclosed to the Police by the parents that they owed money to a drugs dealer who had threatened to kidnap and shoot J and L if the money was not repaid. The dealer had forced entry into the family home, the parents were threatened at knifepoint and injury ensued. The risk to the children from this kind of episode is self-evident.
33. It has been some years since Bracewell J drew attention to the "harm" caused to children within families where long-term damage by neglect is a feature (Re E [2000] 2 FLR 254). At pages 256 to 257 she identified those families:

"… bumping along the bottom or nearly falling off the edge".

Unless timely intervention occurs an intolerable situation for children is accepted:

"… As time goes on there may seem less reason for taking action when children have survived thus far … The effect is to tolerate the status quo until an incident necessitates a proper assessment of the contemporary family situation".

34. That precipitating event at the end of March 2015, was such an event which has resulted in a proper assessment by an Independent Social Worker. The status quo is not acceptable in this case.
    
    
35. The Court would have been required to identify evidence of sustained parental improvement so that the children's welfare was safeguarded, before it would possibly entertain an application for reunification. In view of the parental acceptance of the inevitable, that is not a task which requires any detailed consideration in this case.
36. For the sake of completeness I should indicate that during the currency of these proceedings the interim parental contact has been set at a twice weekly level for two hours, the parents having contact with all four children, which affords opportunity for inter-sibling contact, the children being divided in their foster placements into two groups of two, (J and L on the one hand, and K and E on the other).
37. The other feature of significance is that J, K and E currently all attend the same school, where they potentially see each other with regularity.

The Parental Assessment

38. Miss Lambert has considered the parental capabilities in this case. At the outset she set out her programme of work/engagement by the parents (see E14 to E18). Essentially the parents' engagement was short lived, and it ceased after 20^th May 2015, in the circumstances described in her report.
39. The background circumstances of the parents is set out, including the recent disturbing episodes to which I have referred (see E22). The substance misuse is catalogued, and the Assessment also considers the traditional headings:

(i) the wider family;

(ii) support networks;

(iii) housing and home conditions;

(iv) income;

(v) the family unit;

(vi) environmental factors;

(vii) child developmental needs;

(viii) child emotional and behavioural development;

(ix) basic care;

(x) safety;

(xi) emotional warmth and stimulation;

(xii) stability;

(xiii) guidance;

(xiv) boundaries; and

(xv) routines.


The conclusion is clear (see E55):

"The previous paragraphs sadly detail failure to provide consistency for the needs of the four children under each and every heading".

40. There is an intra-sibling relationship and co-dependence, with the two older children being anxious for and protective of their younger siblings. That is probably a reflection of their home circumstances.
41. The Independent Social Worker did observe a successful session of parental contact with the children, within a supervised and a closed environment (see E41), but J in particular is a troubled child, as evidenced by the information from his school (see E42), his involvement with the Therapeutic Support Worker (see E63), and a recent letter dated 20^th January 2016, by a Clinical Psychologist from the Child and Adolescent Mental Health Services, Dr Michelle Rydon-Grange, where J appears clearly to be the most troubled child (at least from his external behaviour). He has self-harmed with a scissors (see E42), and the relationship between J and L is a close one, but a complex one, and J can be both aggressive towards L, whilst loving towards him also. L is physically small in stature although he is the oldest child.
42. I am prepared to accept that the parents love their children, but that does not mean, however, that they can care for them properly 24/7 throughout their minority. The records show that they have not done so historically with consistency.
43. As I have said, the parents have not shown much signs of sustained improvement; that is referred to in the Guardian's report (see E88, paragraphs 3.2 to 3.4). It is difficult without the mother being drug tested to be sure of her current usage of illicit substances (also referred to in the Guardian's report). I was told that the parents' contact attendance had been irregular, but seemingly it has improved since 2^nd October 2015.
44. The conclusion of the Independent Social Worker, the Guardian and the Local Authority is the same; these parents together would be unable to parent the children safely, and to a "good enough" standard were they returned to parental care. Sooner or later (probably sooner I believe) there would be another crisis.
45. The conclusion at page C73 in the second paragraph is accepted by the parents. The Guardian's analysis indicates that the prospect of a successful parental reunification in this case is extremely unfavourable. As I have said, that is not disputed by the parents in their final statements of evidence. Reunification is not a "realistic" option in this case, and that is ruled out by the Court.
46. Although the parents made a number of suggestions with regard to alternative familial carers, they were either negatively assessed, or they withdrew from the assessment process. Accordingly, no familial carer with the necessary capabilities is identified in this case. There is, therefore, one "realistic" placement option in this case for the two oldest children (J and L) namely long-term foster care. For the two youngest children (K and E) two "realistic" placement options have been identified; long-term foster care or adoption outside the birth family. That is the basis upon which this hearing has proceeded, and that has been reflected in the evidence and the submissions which have been made.


The Local Authority's Plans

47. The Final Care Plans for the children appear at pages D89 onwards. For J and L, long-term foster care is proposed. The current level of direct parental contact would be tapered to a four weekly frequency, albeit that the effect of this reduction would be monitored so far as the children are concerned. J has moved placement once since March 2015, L has remained in the same placement. J's presentation has improved, but he is by-no-means "out of the woods" as yet, and he still requires therapeutic assistance and support.
48. So far as K and E are concerned, an adoptive placement of those children together is proposed, with agency post-box contact with the parents. This joint placement is an absolute pre-condition because of the inter-sibling bond between K and E. For K and E, bearing in mind K's age and the need to secure a placement for both children together, the search for adoption is limited to approximately six months' duration from the search commencement.
49. The contingency plan for K and E is long-term foster care, with the attendant provision of direct contact with the parents, and with J and L, although these plans are all put forward as a concurrent Plan by the Local Authority.
50. The prospect of identifying a foster care placement for all four children (although having some attraction) in terms of practicality is probably unrealistic. On the one hand it would recognise the links between the sibling group, but it runs the risk on the other of leaving the children's individual needs unaddressed.
51. The Local Authority's Final Care Plans for the children were amended at the commencement of this hearing to confirm the following:

(i) K and E was to be a joint adoptive placement;

(ii) the search for adopters would require the provision of direct contact between L and E, and J and L, two or three times per annum, after any Adoption Order was made;

(iii) if such a placement was not identified within approximately six months or so, the Local Authority would apply to revoke the Placement Orders and/or inform the parents so they alternatively could apply for a revocation;

(iv) the contingency of long-term foster care would then apply for K and E, but the identification of a foster placement/adoptive placement would proceed concurrently from the outset;

(v) for K and E, post Placement Order, parental contact would be tapered to once every four weeks. The inter-sibling contact would provide contact every four weeks as a minimum, but this could be more frequent. (The Guardian's suggestion in this regard is a defined provision under section 26 Adoption and Children Act 2002, whereby inter-sibling contact between J and L, and K and E would take place every two weeks.)




The position of the parties

52. The Guardian supports the Local Authority's Care Plan for placement, and the concurrent Plan for a search for long-term foster care, proposed in the case of K and E. The Guardian also supports the Local Authority's Final Care Plan for long-term foster care in the case of J and L, and the proposed modifications in parental contact (to which I have referred).
53. So far as the inter-sibling contact between J and L, and K and E is concerned, the Guardian indicates post-placement this should still continue to take place, and he suggests a fortnightly frequency, that to be a defined Order under section 26 Adoption and Children Act 2002, to underline the importance of this inter-sibling contact for the children, and to underline also its importance in the search for prospective carers.
54. The Guardian does support the application for a Placement Order for K and E as a joint placement, but on the basis that there is this two-weekly inter-sibling contact under section 26 Adoption and Children Act 2002, following the making of any Placement Order.
55. So far as the parents are concerned, they either support or do not actively oppose the placement of J and L in long-term foster care. They oppose the adoption Plan for K and E, and they advocate long-term foster care in substitution for that Plan. They would like to have at least weekly parental contact between all of the children, J and L, K and E, and they have suggested weekly inter-sibling contact as well.

The legal provisions to be applied

56. In Care Proceedings, having found the threshold of "significant harm" to be established (as I have done), I must next consider the Local Authority's Plans for the children, applying the paramountcy of their welfare, and the "welfare checklist" provisions under section 1 Children Act 1989. The Care Plans have to be a proportionate and a necessary response to the risk of harm. In the case of Re B [2013] 2 FLR 1015 a Care Order depriving a parent of his or her care of a child, particularly where this involves placement outside the birth family by way of adoption, is to be considered a last resort where nothing else will do.
57. Re B-S [2014] 1 FLR 1035 emphasised at paragraphs 17 to 29, under the heading "Adoption Fundamental Principals", that a stringent and demanding test must be applied. The dispensation of parental consent, for example, on the basis of a child's welfare, as defined by the Adoption and Children Act 2002, can only be ordered where this is "required", and this has the connotation of the imperative.
58. In cases involving adoption a consideration and analysis of the "pros and cons" of each "realistic" placement option is required, having regard to the children's welfare, Re B-S and Re R [2015] 1 FLR 715.
59. I will deal later with the specific requirements for a Placement Order, however, the division of this judgment into the separate headings is intended to provide some structure to the judgment, and to assist with this clarity, and is not intended to restrict "a proper holistic evaluation of the central welfare question".

J and L

60. There is no realistic prospect of these parents being able to offer J and L an appropriate "good enough" standard of care consistently maintained. The threshold having been established, and there being no alternative familial carer in prospect, the Local Authority is obliged to make alternative arrangements for the children's family life. These children are too old to be successfully adopted. Ideally they would wish to return home. Their birth familial ties are too strong, their knowledge of the family and their place within it, and their origins mean that they would not be able to transfer their attachment successfully to a new forever family.
61. J and L would be unhappy by any separation from their siblings. That was confirmed to me by the Guardian (see E78, paragraph 4.6) in relation to L, and J (see E80, paragraph 4.15). It was also very fairly conceded by the key social worker (Miss Kizilaslan) who could foresee difficulties ahead for all four of the siblings if they were separated.
62. The father also confirmed to me in his oral evidence the potential adverse impact upon all of the children, and J and L.
63. While ultimately it is the welfare interests of the subject children in the Placement Application which are paramount with regard to those applications, the Court can take into account the impact upon other non-subject siblings, because the "welfare checklist" under section 1(4) Adoption and Children Act 2002, indicates that the Court must have regard to the specified matters "among others", i.e. the listed considerations are not exhaustive.
64. Long-term foster care for J and L offers the best prospect of combining a safe standard of future physical care, with their emotional wellbeing and stability, and a significant element of security, as compared to their present circumstances with the parents, coupled with the preservation of some level of parental contact.
65. While parental responsibility will be shared with the Local Authority, it does (in these particular circumstances) amount to the least interventionist response. It is, in my judgment, therefore both proportionate and necessary. The Guardian agrees with the Plan, and as I have said already the parents either do not actively oppose it, or they may perhaps implicitly consent to it.
66. Under section 31(3A) Children Act 1989, the Court is required to consider the placement provisions of a section 31A Plan for each child. I am required also to consider the contact arrangements, and to invite comment upon them under section 34(11) Children Act 1989.
67. The quantum of parental contact will be considered at periodic statutory review within the Local Authority's obligation to promote reasonable contact for the parents. The parents have been irregular in their attendance historically, but they have improved since October 2015. I accept the evidence of the key social worker that the children's greatest interest lies in inter-sibling contact, and I accept what I was told about L's refusal of telephone contact with his parents.
68. The reduction in parental contact and its effect upon J and L will need to be monitored very carefully, because it could impact upon the stability of their foster placement. However, I believe that a reduction is required because J and L will need time to adjust to the plans generally for the family. Interference by the parents who may be aggrieved by the reduction in contact is likely to destabilise the children, and J in particular is at risk in that regard. The last thing required by J and L currently, is a placement move which is unplanned, or separation because they react adversely and there is a crisis.
69. The health of the foster carer looking after J and L currently (I am told) is uncertain, and the children are currently relatively well settled. I implore the parents not to cause any upset to J and L, however disappointed they may feel at the reduction in their contact as proposed by the Local Authority and as accepted by me. That would not be in J and L's best interests. An adjustment, I believe, in parental contact frequency is necessary to give J and L some respite from the parents. It is appropriate at this juncture when Plans have been finalised.
70. I do not propose to make any defined Order for J and L's contact. The threshold having been proven, having regard to the paramountcy of their welfare, I approve the Local Authority's Final Care Plans for those two children, which includes the reduction in parental contact, and make final Care Orders with regard to J and L.

K and E, and the additional Placement Application

71. Coupled with the applications for Care Orders in their case (which I have mentioned), I have applications for Placement Orders, together with Statements of Facts, and an Annex B report in the case of both children. The Agency Decision Maker of the Local Authority made the appropriate recommendation on 15^th January 2016, and the Placement Application was issued by the Court (from the Court file) on 20^th January 2016, the pre-adoption medical having taken place on 30^th November 2015.
72. The Statement of Facts is based upon both the mother and the father's consent, and there is no alternative familial carer in the case of K and E.
73. I have available to me the key documents which are the preliminary requirements of the Adoption Agency (Wales) Regulations 2005, as amended from 1^st September 2012, and section 18(2) Adoption and Children Act 2002, has been established.
74. In accordance with the guidance given in the case of Re B-S (to which I have referred already) a "pros and cons" analysis has been undertaken by the Local Authority and by the Guardian in this case. The guidance in Re B-S has been supplemented by the guidance given in Re R, and the alternatives have to be considered on the basis of the children's best interests, and they have to be realistic, as indicated at paragraphs 59 and 62 in the case of Re R.
75. Because I have made threshold findings already I have jurisdiction to make both Care Orders and a Placement Order in the latter instance, because of section 21(2)(b) Adoption and Children Act 2002. The Care Plans have to be scrutinised, having regard both to the paramountcy of these children's welfare under section 1 Children Act 1989, but also having regard to the paramountcy of their welfare throughout their lives under section 1 Adoption and Children Act 2002. I have to apply the "welfare checklist" provisions under both sections 1 of the Children Act 1989, and the Adoption and Children Act 2002, to the facts of the case. The Plans have to be a proportionate and necessary response to the risk, and adoption is to be regarded as a last resort.
76. I can only make Placement Orders if the consent of the mother and the father in this case is dispensed with under section 52 Adoption and Children Act 2002, and I can only come to that decision by applying the paramountcy of the children's welfare throughout their lives, and by applying the provisions of section 1(4) Adoption and Children Act 2002. It is that section which also has to be applied when the Court comes to a decision which relates to the children's adoption, and that includes the making of Placement Orders, that being the combined effect of sections 1(1) and section 1(7) Adoption and Children Act 2002.
77. It was decided in the case of Re P [2008] 2 FLR 625 that the Court has to answer the question to which section 52 Adoption and Children Act 2002, gives rise by applying the statute to the facts of the case. An Order has to be a proportionate and a necessary response, because the children's Convention Rights are engaged. What has to be shown is that the children's welfare requires adoption as opposed to something short of that. That has the connotation of the imperative, what is demanded.
78. My conclusion with regard to the resumption of parental care in the case of K and E replicates that in the case of J and L, indeed more so because K and E are younger and more vulnerable, and the future risk is probably the greater, certainly with regard potentially to their physical safety. Again in the case of K and E, there is no alternative familial carer in prospect as I have indicated. The "realistic" alternatives, therefore, are adoption or long-term foster care.
79. The task confronting the Court was identified by Ryder LJ in the case of Re Y [2015] 2 FLR 615:

"The process of deductive reasoning involves the identification of whether there are realistic options to be compared. If there are, a welfare evaluation is required. That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors. The Court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified."

80. K, more so than E, is at the cusp between the period where adoption is more likely to be successful, and a period when it is more likely to be difficult. However, each child is an individual, and there can be a successful adoption of an older child and an unsuccessful adoption of a younger child. However, this is to be a time limited search of approximately six months duration. I am not required to evaluate the prospect of actually locating an adoptive placement for K and E before I can consider its suitability on welfare grounds, because that would risk depriving K and E of the prospect of a search which might yield an outcome which might be considered to be the best outcome for the children, on a Re B or Re B-S basis.
81. The quality of care afforded by selected long-term foster carers is likely to be of a good standard, as indeed should the care afforded by prospective adopters screened and selected by the adoption agency.
82. The factors to be weighed in the balance in this case appear to be as follows:

(i) foster care offers the prospect of preserving familial links, both legally and by direct contact, whereas adoption does not;

(ii) foster care offers the prospect of maintaining the inter-sibling identity, and of satisfying both J and L;

(iii) adoption offers the prospect of a placement which most closely replicates ordinary family life, with the attendant emotional security and stability and attachment, which is buttressed by the legal effect of such an Order; and

(iv) foster care can prove to be uncertain, and is prone to breakdown.

83. However, while it is easy to identify the factors, when weighed in the balance they do not have equivalent weight. Much depends on the circumstances of each case.
84. Mr Sellars, on behalf of the Local Authority has drawn my attention to two decided cases, Re V [2013] EWCA Civ 913 and Re LRP [2013] EWHC 3974 (Fam). There, the Court of Appeal and Pauffley J identified the advantages of adoption over long-term foster care. This was done in the case of Re LRP at paragraph 39 (that being a case of two children who were nineteen months and six months-old, and parental reunification had been ruled out) and at paragraph 96 of Re V (a case involving two children who were nine and five years-old).
85. I have already myself identified some of the advantages noted in these judgments. I observe that Re V was a case where the Judge at first instance had wrongly overemphasised the importance of the children's parental contact, with the mother in particular. The contact between children and mother was not beneficial, and as appears at paragraph 65 of the judgment, that contact had completely broken down by the time the Court of Appeal considered the case, because of the mother's aggression towards the children.
86. In this case the evidence would indicate (save perhaps for the evidence of Miss Jones) that the inter-sibling contact is considered to be essential for the children's long-term welfare when looking at the sibling group as a whole, and when looking at K and E in particular.
87. The key factor in this case, identified by the Guardian, by the Local Authority (save perhaps in the evidence of Miss Jones) and also the parents, is the importance of this inter-sibling relationship. The Independent Social Worker (Miss Lambert) suggested a specialised assessment of attachment before the finalisation of Plans for the children (see E41).
88. The key social worker in her oral evidence indicated that this might have been of assistance. Nevertheless, in her assessment of the sibling attachments (see C39) she considered, quite properly, the children's needs, their wishes and their ongoing relationships. The assessment identifies a number of features:

(i) the traumatic past experiences of the children and its aftermath;

(ii) the effect upon J in particular (see C48 and the Guardian's report at E78 to E79);

(iii) the protectiveness of the older siblings for their junior (see C42);

(iv) the protectiveness of the older children for their parents;

(v) the progress made by E and K in their placement (see C45);

(vi) the crucial importance of therapeutic assistance/support/work for all of the children, and the adoption preparation required for E and K in particular (see C42 and the social worker's oral evidence);

(vii) the complicated relationship (both loving and aggressive) between L and J (see C42 and the social worker's oral evidence);

89. In general the social worker believed that the children had formed a "co-dependent and confused attachment style" (see C48).
90. The foster carer of K and E emphasised the importance of the inter-sibling bonds. That evidence was produced to me by the social worker in the course of her oral evidence. The foster carers' support for adoption in the case of K and E appeared to be extremely qualified from the social workers evidence.
91. Furthermore, the key social worker and the foster carers have emphasised the strength of the sibling relationship between J and L, and K and E (the two sibling groups) and also a further relationship between K and L which breaks across the two current sibling groupings of the children, and is again a complicating feature.
92. Unless therapeutic/adoption preparation support takes place for K and E the likelihood of success is compromised. This process of itself has a potential timescale of approximately six months duration.
93. The Guardian (see E81, paragraph 5.3) says:

"It is my view that the sibling relationship is the most enduring in this case given their shared experiences that has formed a unique bond which they do not have with anyone else. It is my view that direct sibling contact between these children would promote stability in any future placement. It is my view that the emotional impact of ceasing direct contact between either sibling group in this family, at a time of uncertainty and change, would have an adverse effect upon them. It is my view that the Local Authority should maintain direct contact between the siblings, and actively seek prospective adopters who would promote this, should Placement Orders be granted in respect of the younger siblings".

94. K and E must be placed together in the Guardian's view (see E91, paragraph 5.5), and that suggestion and recommendation is now accepted by the Local Authority itself. The Guardian said (see E93):

"K and E have a strong bond with each other and their older siblings with whom they have strong emotional ties with. Therefore, ceasing direct contact between either sibling group in this family would have an adverse effect upon them. I am concerned about the emotional impact this could have on the children should direct contact cease with their siblings".

95. Although I am not required to give consideration to this criteria, the practicality of these arrangements proposed by the Local Authority, when looked at in totality, appear to be increasingly doubtful. Namely, the placement of two needy children together within approximately six months because of the age of the older child. The therapeutic/adoption preparation being required, with an eventual requirement for continuing inter-sibling contact (particularly if that were at the level suggested by the Children's Guardian).
96. If the inter-sibling contact is crucially important, then perhaps that should be recognised, and a placement option selected which most readily provides for such contact.
97. The evidence given by Miss Jones (the therapeutic social worker) identified the key components of the work required to support K and E to make the transition to adoption. The children were not, in her view, unadoptable, however, I view the prospect of active support for this process by the parents, and by J and L, (as advocated by Miss Jones in her oral evidence) to be unlikely in the extreme.
98. The involvement of the prospective adopters at the end of this process, with regard to their support for post-adoptive contact, was also identified by Miss Jones. Initially there would be a video recorded assessment of the children's needs, with therapy and life journey work potentially over a 26 week period. Post-adoption assistance would also be forthcoming from the Adoption Agency. However, Miss Jones conceded that she had not actually met the children, and therefore this did call into question, in my judgment, the two assertions made by her in the course of her evidence:

(i) that the current contact provision for the siblings was potentially harmful on the basis that she was "hypothesising that this was not a healthy bond or attachment" between the siblings; and

(ii) a concurrent Plan for foster care and open adoption following any Court Order was likely to "maintain the children's anxiety".

This is precisely the Plan being advocated by the Local Authority in its Final Care Plans.

99. The Guardian in his evidence stressed the crucial need for continued inter-sibling contact to maintain the bonds created during their past shared adversity. The children had experienced so much together they had formed a particularly close unit. This was a very complex case where the Guardian had struggled to make a recommendation, because of the competing needs of all four children. However, the need for a defined post-placement inter-sibling contact provision was necessary, and that should be fixed at once every two weeks; that was the Guardian's evidence to me.
100. That would highlight the importance of this continued contact in the search for prospective adopters, and was appropriate as a level of contact, recognising the particular needs of these children. He maintained this position, despite being cross-examined on behalf of the Local Authority, on the basis that this level of contact potentially was incompatible with the provision of a "forever" family.
101. The Guardian accepted that the decision with regard to placement options for K and E was finely balanced, but the inter-sibling contact was important, and I would summarise from his evidence, viewed as being virtually imperative, and the frequency proposed was unmodified by him in his conclusion to this Court.
102. The prospect of E and K being accommodated by Local Authority foster carers for many years to come, with the attendant uncertainty has many obvious pitfalls. However, the absence of continuing and significant levels of inter-sibling contact is not believed by the Children's Guardian to be in the childrens' best interests.
103. The Court can make a Placement Order where the Local Authority promotes a twin-track Plan. That was decided in the case of CM v Blackburn with Darwen Borough Council [2015] 2 FLR 290. There it was argued unsuccessfully that adoption as the best placement option on the merits should have failed the proportionality evaluation, because there was available an alternative proposal by the Local Authority in the shape of foster care.
104. What has exercised my consideration is whether the adoptive placement in this case does properly satisfy the Re B and Re B-S test, bearing in mind the level on ongoing inter-sibling contact proposed by the Children's Guardian. If I accept that this is a key requirement this is most compatible with long-term foster care. In this case parental reunification would be harmful for K and E, therefore, a refusal to endorse the Local Authority's Final Care Plan, and dismissal of the application for a Care Order would leave K and E entirely unprotected.
105. In these circumstances I would be obliged to follow a different course. As set out in the case of Re T [2015] EWCA Civ 983 the President indicated at paragraph 38:

"The Court may encourage the Local Authority to modify its Care Plan so as to make it accord with what the Court believes is in the interests of the child, but the Court cannot compel."

This is a longstanding practice indicated both in this and in earlier decided cases.

106. Rarely, very rarely have I requested the Local Authority to reconsider a Final Care Plan, but in this case I do so. The case for adoption in the case of K and E is not as decisive as it should be so far as the Re B and Re B-S test is concerned. If the provision of direct inter-sibling contact is so fundamental and central to these children's future welfare, and if this is to be provided at a meaningful frequency, and not at a tokenistic frequency, that is at odds with a Plan for adoption, despite the possibility of post-adoptive contact Orders. If K and E have an emotional legacy/tie with their siblings which merits proper and real recognition, then should not that be respected as an important requirement?
107. I am required to consider under section 1(4)(f) Adoption and Children Act 2002, the children's relationship with their siblings, and under section 1(4)(c) Adoption and Children Act 2002, the likely effect upon them throughout their lives of having ceased to be members of the birth family and of becoming adoptive persons.
108. Despite E's age, and because of her critical link with K, and the sibling link generally I propose to invite the Local Authority to reconsider the Plan for the two children K and E. In this regard I do not intend at present to accede to the Local Authority's application, nor to accept the Guardian's recommendation in favour of Placement Orders. I believe that the logic of the Guardian's position with a continued and high level of inter-sibling contact should have pointed him in the direction of long-term foster care for the children, if that was indeed (as I believe it to have been) a determinative consideration for him. I see no reason to depart from the preliminary aspects of the Guardian's reasoning; where I depart company with him is in respect of his conclusion upon those preliminary aspects.
109. How can the President's test in Re B-S at paragraph 22, and the combined welfare best interests and proportionality considerations of Re Y be met in these circumstances? I do not believe they can be and I have no real basis for disagreeing with the Guardian's assessment with regard to the importance of the inter-sibling contact, although I do disagree with the outcome recommended by him.
110. If, after mature reflection, the Local Authority and the Guardian remain of the same view, then I will return to consider specifically whether the application for a Placement Order can legally be approved, and if not, having regard to the evidence given, where does that leave the application for a Care Order and the Local Authority's Final Care Plan, in circumstances where these two children cannot safely be returned home, and to parental care?
111. It is for that reason that I propose to adjourn this application so far as K and E are concerned, which may necessitate a further extension of the 26 week limit. A transcript (if necessary) can be provided of my judgment to give the Local Authority, and perhaps the Guardian, the opportunity to reflect upon the views expressed in this judgment. I propose to re-list the matter for a hearing with appropriate time being allowed for consideration, but in advance of that hearing, the Local Authority is to notify the other parties and the Court of the decision taken by them. The hearing will then proceed on the basis (I am assuming) of submissions only as to whether the Court can properly make Placement Orders, or Final Care Orders with the reservation I have expressed if the Local Authority's Plans remain unmodified. There are a number of decisions which have to be considered before the Court proceeds to finally disposing of the applications.
112. So far as the Orders today are concerned, there should be a Final Care Order with regard to J and L, recording the approval of the Final Care Plan, and the reduction in parental contact. In the interim, as between J and L, and K and E, I would anticipate the interim arrangements for inter-sibling contact would be preserved.
113. So far as K and E are concerned, their applications will be relisted on a future date, but in advance of that, the Local Authority should inform the parties and the Court of its decision, and there may be a need for skeleton arguments at the Final Disposal Hearing to decide what (in these circumstances) appropriate action the Court can and should take.

End of judgment