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Cite as: [2017] EWFC B43

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

Case no.: OX16C00111

IN THE FAMILY COURT AT OXFORD

IN THE IN THE MATTER OF THE CHILDREN ACT 1989 AND
IN THE IN THE MATTER OF T (A CHILD)

Date: 14^th July 2017

Before : HHJ Vincent

Between :

OCC

Applicant

and

(1) A (mother)

(2) B (father)

(3) T (by his guardian KC)

(4 & 5) C AND D

(paternal aunt and uncle)

Respondents

Cecilia Barrett (instructed by Oxfordshire County Council) for the Applicant

Grant Keyes (instructed by Brethertons) for the First Respondent mother

Jennifer Kotilaine (instructed by Reeds solicitors) for the Second Respondent father

Paul Murray (instructed by Griffiths Robertson) for the guardian

Simon Miller (instructed by Royds Withy King solicitors) for the Fourth and Fifth Respondent aunt and uncle

Hearing dates: 10^th, 11^th, 12^th, 13^th, 14^th July 2017

JUDGMENT

Key:

T: subject child, 11 months

A: T’s mother

B: T’s father

C: paternal aunt and proposed kinship carer for T

D: paternal uncle and proposed kinship carer for T

E: paternal aunt (younger sister of B and C) and current carer of T’s full sibling H

F and G: current foster carers

H: T’s full sibling, 4

J, K, L and M: C and D’s children

CP: social worker

KH: social worker, author of first kinship assessment

CH: independent social worker, author of second kinship assessment

KC: children’s guardian

Introduction and parties’ positions

1. I am concerned with T, who is eleven months old. He is the second child of his parents, A and B. Their older son, H, now four, lives with B’s younger sister E, following care proceedings which concluded in October 2015. A and B continue to be in a relationship, both are struggling with addiction to drugs and are at present without a home.

2. T was subject to child protection planning before his birth, was exposed to illegal drugs in the womb and was born withdrawing from those substances. Pursuant to an interim care order he was discharged to the care of his current carers F and G, in a foster-to-adopt placement. The care he has received ever since then has been of a very high standard. He is very much loved and has been treated as the child of the family from the outset by F and G. It is their fervent hope that he may be able to stay with them long-term and to be adopted.

3. B and E have an older sister, C. C’s partner is D and they live together with their two young children L, 3, and M, 1, and C’s two children from a previous relationship, J, 17, and K, 15. C was estranged from E at the time of the proceedings involving H but their relationship is now repaired. H spends regular time with C and her family and stays with them for a full weekend once a month.

4. C and D have put themselves forward as kinship carers for T.

5. The local authority’s plan is that the Court should make care and placement orders and that T should be placed for adoption with his current carers F and G.

6. The parents have been represented but have not fully participated in the proceedings. I first met them on the last day of the hearing just after I had informed the parties and their representatives of my decision. They have had only a few contacts with their son. Their instructions to their lawyers have been that they accepted they could not themselves care for T, but supported his placement with C and D.

7. The guardian opposes the local authority’s plan for care and placement orders, and considers that he should be placed with C and D pursuant to Special Guardianship orders in due course.

8. All parties have been ably represented by counsel as follows:

Local authority: Cecilia Barrett

Mother: Grant Keyes

Father: Jennifer Kotilaine

Paternal aunt and partner: F Miller

Children’s guardian Paul Murray

Chronology of the proceedings

9. T was born on 12^th August 2016. He stayed in hospital to receive specialist care to manage the effects of being exposed to drugs in utero. Proceedings were issued on 19^th August 2016 and allocated to magistrates. In the genogram for T prepared on 19^th August 2016, C’s name is there between her siblings B and E, but at that stage no one from the local authority had made any attempt to contact her. T’s social worker CP had been his brother H’s social worker, and her understanding from the proceedings which had concluded only nine months earlier was that Cwas estranged from both B and E.

10. On 22^nd August, when T was ten days old and still in hospital, his aunt C (having discovered through Facebook that he had been born) sent an email to his social worker confirming that she and her partner ‘would like to offer a safe place for him.’

11. On 24^th August 2016 the justices made an interim care order.

12. CP wrote a text message to C on 26^th August informing her that an interim care order had been made, and that he had been placed in foster care ‘until we can get out and do assessments of family members.’

13. In fact I believe that T was not discharged from hospital until 5^th September to the care of G and F, pursuant to the foster-to-adopt scheme.

14. CP carried out a viability assessment of C and D dated 16^th September 2016 which was broadly positive and recommended a full kinship assessment. Potential concerns identified were that there were already four children in the household, that the youngest, M, is very close in age to T, thereby presenting a challenge to C of having two young babies to manage as well as the older three children. It was said to be a concern that C had never met T’s birth mother and was estranged from her brother B. The potential fragility of C’s recently repaired relationship with her sister E was another potential concern. The family finances were said to need to be further explored.

15. Nonetheless, this was a positive viability assessment and it is on any view very unfortunate that no steps were taken to set up contact between T and members of his birth family at this time.

16. I do not know what if any conversations were had with the foster carers at this stage or later about the discovery of C and D as potential kinship carers for T.

17. The full assessment was dated 28^th November 2016 by KH. This assessment was extremely positive and recommended C and D as kinship carers for their nephew.

18. On 7^th December 2016 an internal meeting took place at the local authority’s offices attended by CP, KH, their respective managers, two members of the local authority’s adoption team, and FR, the Independent Reviewing Officer. At the conclusion of that meeting, and despite the positive kinship assessment, the view of the group was that the local authority’s care plan for T should be for adoption.

19. It is of some concern to me that it is recorded in the notes that FR, the Independent Reviewing Officer, and NC and AM, both of the adoption team, had not had sight of KH’s kinship assessment. It is therefore of further concern that later in the notes AM is said to ‘share that she would be concerned about how C would manage T’s needs with four children to care for, one of who was a baby’, and that she and Fran, ‘shared concerns about the impact on C’s four children.’ These concerns were raised in the viability assessment and addressed by KH in her report. She concluded that notwithstanding the existing children in the household, C could meet T’s needs; so in her professional assessment, these concerns were not a bar to placement within the family.

20. KH is an experienced social worker, but was new to this particular role; this was her first kinship assessment. It would appear from the notes that she did have the confidence to challenge others, for example in discussions of T’s particular needs, she queried whether some of the difficulties identified could be attributable to the foster carers being inexperienced first time carers. However, in this room one might expect the voice of the IRO and the social work managers to dominate over hers. At the conclusion of the meeting it is noted that ‘all professionals agreed that T’s needs would be best met by adoption if he was to remain in his current placement.’ It is noted that KH ‘agreed the outcome of the meeting but was clear she felt C had the capacity to meet T’s needs.’

21. The guardian was not invited to this internal meeting but was spoken to afterwards, but as she had not yet received the kinship assessment she made it clear she could not give any view about the local authority’s proposed plan at that time. KH’s assessment was due to be disclosed on 9^th December, but was not disclosed until 19^th December, by which time the guardian was on leave - so she did not receive it until the New Year.

22. The local authority subsequently filed its final evidence with a care plan for adoption. However, the day before the IRH on 20^th January 2017 a problem arose because the local authority’s agency decision maker did not approve the care plan. The IRH was listed before District Judge (Magistrates’ Court) Pattinson. The hearing was ineffective and adjourned for a couple of weeks to enable the local authority to consider its position.

23. In light of these developments the guardian was keen for C and D’s position to be made clear. Directions were made requiring the local authority to write to them to inform them of the outcome of the ADM meeting on 19^th January 2017, to be aware of their right to challenge the local authority’s current unapproved recommendation, and to encourage them to seek legal advice. C was directed to reply to this letter setting out her position. She did so, and confirmed once again that she and D wished to care for T.

24. At the hearing on 3^rd February 2017, again before District Judge Pattinson, the local authority was still without a care plan and sought more time for further inquiry and consideration before it confirmed its position. The guardian applied for an independent social worker to carry out an assessment of C and D as special guardians, and this application was granted.

25. The case was re-timetabled to final hearing on 29^th March 2017 before District Judge Pattinson.

26. On 8^th March 2017 there was a further hearing before District Judge Pattinson as applications had been made for DNA testing of T to confirm his paternity (which subsequently confirmed B as his father) and for an extension of time for the independent social worker to file her report. The applications were granted and the final hearing was vacated.

27. The independent social worker, CH, filed her report on 23^rd March 2017 in which she was very positive about C and D, she describes them as extremely committed and ‘more than capable of meeting many of T’s needs to a high standard, particularly his familial and identity needs’. However, she says that given his security and developing attachment to his current carers, she says ‘the disruptive emotional effects of the loss T will experience of having a placement move at this time, given his sensitivity and additional needs, could have far reaching effects on his long term emotional, behavioural, psychological and social development.’ She therefore recommends that T’s needs would be best met in his current placement. She writes:

‘The court may consider that this does not fulfil the principle that adoption should only be used when nothing else will do, as in many respects C and D can meet T’s needs, so therefore it may not be considered that nothing else will do. However, in my opinion T’s needs can be best met in his current placement with a clear commitment to an open knowledge of and contact with his birth family who have put themselves forward. This will mean that his familial and identity needs can be met whilst maintaining the emotional security of undisrupted early attachment figures.’

28. Following receipt of this report the local authority once more put forward a final care plan for adoption, and the ADM approved the plan on 28^th March 2017.

29. On 31^st March 2017 at a further hearing before DJ Pattinson the proceedings were re-allocated to me. I approved agreed directions submitted to me (without a hearing) on 12^th April 2017, listing a new IRH and final hearing as soon as was reasonably practicable, which unfortunately was not until the week commencing 10^th July 2017.

30. Contact only started between C, D and her family and T on 11^th May 2017. There have been twelve contacts since and the records show that they have been extremely positive, and the qualities that those assessing C and D identified are evident in the calm, confident and tender way they have responded to T, and ensured that the time they have spent together has been focused on his needs. It is clear he has had a lovely time on each occasion, albeit he has been unsettled in the car journeys home.

31. I invited G and F to write to the Court if they so wished to set out their feelings. They wrote a moving letter to me, describing their love for T, the loving care that they have given to him since his discharge from hospital, and the very great joy that he has brought to them and to their extended family over the past eleven months. In the letter they describe their hope that they will one day be able to adopt him and to call him their son.

The law

32. In order to decide whether or not to approve the local authority’s plan, I must ask myself two questions. Firstly, has T suffered or is at risk of harm caused by the care given by his or her parents? Secondly, what order should the Court make?

33. The first question is answered by consideration of whether the threshold for making public law orders is passed.

34. The second question is answered by consideration of T’s welfare, with reference to the factors set out in the welfare checklist at section 1(3) of the Children Act 1989. In reaching my decision the welfare of T (throughout his life) is paramount and his welfare has been at the forefront of my mind throughout this hearing.

35. Whenever a court is coming to a decision relating to the adoption of a child, the Court must also have regard to section 1 of the Adoption and Children Act 2002, in particular the factors set out at the checklist at section 1(4) of that Act.

36. With respect to the application for a placement order, section 21 of the Adoption and Children Act 2002 states that the Court can only make a placement order against parental consent where it is satisfied that consent should be dispensed with.

37. I remind myself that the European Convention on Human Rights applies in every case of this nature. Article 8 provides that ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

38. In Re B [2013] UKSC 33 the justices of the Supreme Court considered the approach the Court should take where the local authority’s application is for adoption. Lord Neuberger said at paragraph 82 of his judgment:

‘What the Strasbourg jurisprudence requires (and, I would have thought, what the rule of law in a modern, democratic society would require) is that no child should be adopted, particularly when it is against her parents’ wishes, without a judge deciding after a proper hearing, with the interests of the parents (where appropriate) and of the child being appropriately advanced, that it is necessary in the interests of the child that she be adopted.’

At paragraph 104 he said:

‘… adoption of a child against her parents’ wishes should only be contemplated as a last resort – when all else fails. Although the child’s interests in an adoption case are ‘paramount’ (in the UK legislation and under article 21 of UNCRC) a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.’

39. Baroness Hale said at paragraph 198 of Re B:

‘Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, at para 34,

‘Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interests of the child.’

40. This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, also cited in Re B:

“.. family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing”.

41. I remind myself of the case of Re R (a child) [2014] EWCA in which the President of the Family Division said:

‘Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.’

42. I have been referred to Re W [2016] Civ 793. In that case a child was settled in a placement with prospective adopters when her grandparents, of whom the local authority had not previously been aware, came forward to offer themselves as her carers. On behalf of the guardian I have been referred in particular to the words of Lord Justice McFarlane at paragraphs 65 and 66:

65. Where an adoptive placement has been made and significant time has passed so that it can be seen that the looked for level of secure, stable and robust attachment has been achieved, the welfare balance to be struck where a natural family claimant comes forward at this late stage to offer their young relative a home must inevitably reflect these changed circumstances. At the earlier time when a placement order is being considered, that side of the balance, which must now accommodate the weight to be afforded to the child's place within the adoptive family, simply does not exist. The balance at the placement stage, therefore, naturally tilts towards a family placement where the relatives have been assessed, as these grandparents have, as being able to provide good, long term care for a child within their family. At the placement order stage, the other side of the scales (against a family placement) are likely to be populated by factors such as the risk of harm and the need to protect the child. The question of harm to the child occurring as a result of leaving their current placement will normally not arise as a factor at the pre-placement stage given that such a child is likely to be in temporary foster care and will have to move in any event either on to an adoptive placement or back to the natural family.

66. In a case such as the present, where the relationship that the child has established with new carers is at the core of one side of the balancing exercise, and where the question of what harm, if any, the child may suffer if that relationship is now broken must be considered. The court will almost invariably require some expert evidence of the strength of the attachment that exists between the particular child and the particular carers and the likely emotional and psychological consequences of ending it. In that regard, the generalised evidence of the ISW and the Guardian, which did not involve any assessment of A and Mr and Mrs X, in my view fell short of what is required.’

43. During the course of his judgment McFarlane LJ discusses the use of the phrase ‘nothing else will do’, by Baroness Hale in Re B at paragraph 198 (above) and again at paragraph 215, where she says:

‘We all agree that an order compulsorily severing the ties between a child and her parents can only be made if ‘justified by an overriding requirement pertaining to the child’s best interests’. In other words, the test is one of necessity. Nothing else will do.’

44. At paragraph 68 of his judgment in Re W, McFarlane LJ writes:

‘The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase ‘nothing else will do’ is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s1). The phrase ‘nothing else will do’ is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

45. Miss Barrett has referred me to a more recent case, another Re W (a child) - [2017] EWHC 829 (Fam). The President sets out the dilemma he faced at paragraphs 225 to 227 when considering whether a little girl should remain with the couple with whom she had been placed for adoption when she was 13 months old, or to be reunited with her birth family. She was nearly four by the time the President made his decision. There are a number of differences between that case, which had a very complex procedural history, and this one. The principle difference is that in Re W the Court was considering an application for an adoption order, and so the merits of the prospective adopters fell squarely to be considered as part of the balancing exercise carried out by the Court. In this case we are still at the pre-placement stage and my approach must be different, as described in the earlier Re W case above.

Foster to adopt placements

46. Mr Miller, on behalf of the paternal aunt and uncle, has taken me to section 22C of the Children Act 1989 (inserted by the Children and Families Act 2014) which deals with fostering to adopt placements. I have also been referred to a judgment of the President of the Family Division, Re T (early permanence) [2015] EWCA Civ 983. In that case, the child was in foster to adopt placement and the issue was whether the foster parents could be joined to care proceedings and whether their application for adoption could or should be heard at the same time as those care proceedings.

47. At paragraph 10 of his judgment the President describes how foster to adopt schemes work, as follows:

Early permanence placement

10.              Before proceeding any further it is appropriate to say something about early permanence placements.

11.              The concept is not new, though it has only recently been put on a secure statutory footing. So far as material, section 22C of the Children Act 1989 provides that:

“(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and –

(a)       are considering adoption for C, or

(b)       are satisfied that C ought to be placed for adoption but are not authorised under section 9 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.

(9B)    Where this subsection applies –

…

(b)       the local authority must consider placing C with an individual within subsection (6)(a) [that is, “an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent”], and

(c)       where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.”

The key provision is section 22C(9B)(c).

12.              This is supported by statutory guidance issued in July 2014 by the Department for Education, Early permanence placements and approval of prospective adopters as foster carers: Statutory guidance for local authorities and adoption agencies. We were also referred to two sets of guidance issued in June 2013 by Coram and BAAF, Fostering for Adoption: Practice Guidance and Fostering for Adoption: Becoming a Carer.

13.              The Introduction to the Statutory guidance summarises matters as follows:

“1.       There may be cases where a local authority identifies that, based on the evidence available and on its assessment of the case, the long term permanence plan for a named child is likely to be adoption. The local authority is likely still to be considering other outcomes for the child, and may still be attempting rehabilitation with family, although this will be thought highly unlikely to succeed, and adoption is the most likely outcome. The local authority will already have considered wider family and friends as potential carers for the child and concluded that they are unlikely to be able to care for the child. It is possible that suitable family members may be identified or come forward after the child has been placed, and the authority will need to consider them should that occur. This is because the local authority has a continuing duty to place the child in the most appropriate placement for that child (see section 22C of the Act).

2.                     In some cases the ADM [agency decision maker] may have decided that the child’s plan should be adoption, but the agency has not yet obtained a placement order or have parental consent to place the child for adoption.

3.                     A placement made following consideration under section 22C(9B)(c) of the Act (a section 22C(9B)(c) placement) with carers who are both approved prospective adopters and approved foster carers is a fostering placement under the Act and one which may lead to adoption by those foster carers. The advantage of this type of placement is that the child will be placed with foster carers who, subject to a placement order being made, or parental consent, are expected to go on to become the child’s adoptive family. Delay in finding a permanent family for young children who have already experienced neglect early on in their lives may have a profoundly damaging effect on their development. This type of placement has potential to reduce this delay and the damage caused significantly.

4.                     The carers might be dually approved at the outset or they might be approved prospective adopters who have been temporarily approved as foster carers for a named child under regulation 25A of the 2010 Regulations.

5.                     It is possible that a section 22C(9B)(c) placement may not lead to adoption, for example because the child’s plan changes where rehabilitation with the birth family is successful, because suitable family or friends come forward or because the court does not agree to make a placement order. This may mean that the child returns home or is moved to another permanence arrangement. But, for the vast majority of children who are in a section 22C(9B)(c) placement, progression towards adoption will be the anticipated outcome.

6.                     The child therefore benefits from an early placement with their eventual permanent carers. Local authorities will need to ensure that people who are willing to care for a child in this way are fully aware that the placement may not lead to adoption, and that they have been given appropriate information and training so that they understand their role and legal responsibilities as foster carers and ongoing support once the placement has been made.”

I should also refer to what is said in paragraphs 10 and 28:

“10.    If a family or friend carer is identified after the child has been placed, the local authority still has a duty to assess their suitability to care for the child, and remains under the continuing duty (section 22C(5) of the Act) to place the child in the most appropriate placement available. So if that relative or friend can offer the most appropriate placement, the local authority must move the child.

28.       Section 22C(9A)-(9C) of the Act does not bring forward the point at which the child is removed from his or her birth parents, or affect the process by which that decision is made. Nor does it affect the process by which the decision to place him or her for adoption is made by the court or affect the rights of the birth family in that regard. If there is no parental consent, the decision whether to authorise the local authority to place the child for adoption remains one for the court at the placement order stage, and the birth parents retain their right to be involved in the process and to have full account taken of their views and wishes, as required.”

14.              Fostering for Adoption: Becoming a Carer includes the following:

“A Fostering for Adoption placement will only be made where there is clear evidence to the local authority that there is very little likelihood that the birth parents can resolve their problems or that other family members can take care of the child.

… Where it is the right thing to do, a Fostering for Adoption placement has … significant advantages for the foster carers/ adopters in enabling them to establish a relationship with the child at an early stage … But it does mean living for a time with uncertainty about the final outcome and it may mean, very occasionally, that the child will move back home or to another placement and that can be very distressing for the Fostering for Adoption carers.”

48. In Re T it was forcefully submitted that ‘the analysis of adoption as an option in care proceedings is limited to consideration of adoption in principle and does not involve an assessment of the individual merits of particular proposed adopters.’ It was said that ‘the very idea of a competition between the birth family and prospective adopters at the stage of deciding whether a child should be placed for adoption is to shift the focus away from a true analysis of what is fundamentally in the child’s best interests in favour of the competing views of the adults. …. and … it ran the risk of a simple comparison as to which placement would be better for the child, the very thing that all the jurisprudence demonstrates is not the right question (see, for example, Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332.)’

49. Further, it was argued that ‘the fact that this was an early permanence placement did not give Mr and Mrs X an elevated status, nor did that (or any of the other matters) create a ‘status quo’ requiring the kind of balancing of ‘status quo’ and ‘family’ contemplated in Re M’P-P (Children) [2015] EWCA Civ 584 (see below). In reality, as Mr Tyler put it, the asserted ‘status quo’ and attachment in the present case do not differ in any significant way from what exists in a large proportion of similar care cases where a child has been successfully fostered for a short, interim, period.

50. The President accepted these arguments and made it clear that the Court’s task was to be concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. At paragraph 51 of his judgment he said:

‘The truth is, as Mr Tyler submitted, that, putting on one side Mr and Mrs X’s role as early permanence placement foster carers, and, I emphasise, without in any way wishing to belittle or diminish all that they have done for T, this is a case where there has been an unexceptional period of time caring for an unexceptional child in an unexceptional case. This, in my judgment, is not an exceptional case justifying any departure from the general approach. For the reality is, as Mr Tyler correctly put it, that the ‘status quo’ and attachment on which Miss Scriven and Miss Fottrell placed such emphasis do not differ significantly from what is found in the many similar care cases where a child has been successfully fostered for a short period. Moreover, and to repeat, there is, in my judgment, nothing in the status or function of an early permanence placement foster carer which either justifies or requires any change in the hitherto conventional and long-established approach.’

Independent reviewing officers

51. Mr Miller has referred me to the Review of Children’s Cases (Amendment)(England)Regulations 2004 in respect of the statutory duties of independent reviewing officers.

Evidence

52. I have read and considered all the evidence within the Court bundle, the checklist bundle and the placement bundle. One thing that is positive about this difficult case is that T himself shines through the papers. I have seen some lovely photographs of him; he is a sweet smiley baby with a real sparkle in his eyes. It is clear that he is a much loved boy. He is spoken about with great affection by all who have encountered him; by professionals, his carers and his family members. He is a child who has received the very best care since his birth, and it is heartening that in respect of each of the options I am asked to consider for him, it is guaranteed that T will continue to be loved and treasured by whoever is fortunate enough to be entrusted with his care.

KH

53. KH prepared the first assessment of C and D. Her report is glowing and was completed after six visits to the family including interviews with C, D and the teenage children J and K. KH reported that all four children were delightful and a credit to C and D.

54. I do not accept the local authority’s subsequent criticisms of this report. So far as the missing sections are concerned they relate to a history of T’s birth family which has been provided by the social worker elsewhere. As far as KH’s assessment of the paternal aunt and uncle goes, the report is thorough, considered and reflective. She has taken on board the potential concerns, confronted them with frank discussions with C and D, investigated and made a full assessment. In her professional judgment, these concerns are not such that would prevent C and D being able to care for T and to meet all his needs.

55. It is said that this report should be viewed ‘in isolation’ because it is an analysis of the carers’ ability to care for any baby, rather than T who has particular needs. I have of course seen and considered the social worker’s evidence and CH’s evidence about T and his particular needs, and the notes of the meeting of 7^th December when this was discussed. However, in the light of Re W and Re T, to which I have referred above, I must be cautious about forming any conclusions about the strength of the attachment that exists between T and his current carers and the likely emotional and psychological consequences of ending it, in circumstances where T has not been placed for adoption with them and where there is no expert evidence to suggest this is an exceptional case.

CP, social worker

56. CP has been T’s social worker since his birth. She presents as a committed and diligent social worker; her written evidence is detailed and she sets out her reasoning fully. She fairly acknowledges the very many positives about C and D as potential carers and she has recognised their strong qualities in the contact they have had. In her professional judgment, she considers that adoption would be the best outcome for T. It is ultimately a matter for me to decide in light of the evidence I have heard and read, and with the case law firmly in mind, but I make it clear that in so far as it has been suggested that she was pushing for adoption from the outset and had closed her mind to the family placement, I would regard that criticism as unfair. During the course of the hearing I asked for information about how the nuts and bolts of a transition from T’s current placement to his birth family might work. It is to CP’s credit that in discussion with the guardian and the current foster carers she devised a transition plan and produced a helpful document showing that she had given consideration to the different orders that might be made in order to provide the best means of supporting that transition. She has made it very clear that her commitment is to T and if the local authority plan is not approved, she would still wish to be his social worker and she would work hard to build a relationship with C and D and to support them and T in any way she can. I have full confidence in her ability to do that.

57. She was challenged about why she had not set up contact between T and members of his birth family much sooner; and she accepted that there had been a missed opportunity to do so after the positive viability assessment in September, and again after the positive full kinship assessment at the end of November. She maintained that C and D had not been asking for contact at that stage and she was awaiting the full kinship assessment. By December she said the care plan was for adoption, her point being that it would not have been good to introduce T to his birth family if he were ultimately to be placed for adoption elsewhere.

58. I remind myself that one social worker alone does not run a case. These answers were in my judgment in keeping with the general sense that certainly by December 2016 the local authority had in mind that this was a child whose future lay within the foster-to-adopt scheme and if it had at one time been twin-tracking options for permanence, it was no longer doing so. At the hearings in January and February the local authority appeared to find itself entirely without a plan in prospect, and it is difficult to see why C and D were not firmly in their contemplation as potential carers at that time.

59. It appears that there were a number of missed opportunities. No doubt there will be reflection by the local authority at the conclusion of this case, in particular with regard to its approach to foster-to-adopt placements. The local authority and not me is best placed to review the process by which the kinship carers and T appear to have been deprived of the opportunity of contact (or his placement with them) at an early stage. It is not evident to what extent the foster carers were kept informed about the positive viability and then full kinship assessments - and the consequential risk to T’s placement with them. The local authority may wish to reflect on their approach which does appear, at the least from December 2016 to have been on a single-track towards T’s placement for adoption out of his birth family.

CH

60. CH has prepared a detailed report and she came across as experienced, thoughtful, open-minded and fair. I have paid close attention to her evidence. Since filing her report she has had the opportunity to read the guardian’s analysis and she evidently found it persuasive, although she did in evidence maintain her position that T should remain with his current carers.

61. Her assessment of C and D was extremely positive and as with KH, it is based on a thorough investigation, full interviews and frank discussions. She was plainly very impressed by C as a mother, by D, and by all the children of the family and considers they have much to offer to T. She too carried out a thorough investigation and had the benefit of meeting with T and his current carers. Having regard to the case law, I must treat her evidence about their capabilities with some caution because I cannot carry out any comparative assessment of theirs and C and D’s abilities.

62. CH has views about foster-to-adopt and its potential drawbacks, and the circumstances of this case could well be regarded as adding weight to those views. When cross-examined she said without hesitation that if T had been in a foster placement with professional foster carers, rather than foster carers who wish to become prospective adopters, she would recommend placement within his family. She said that professional foster carers would have been trained to move T on, whereas these carers have invested in him in a different way, thereby encouraging a deeper attachment, and because he has been parented in a particular way by F and G, he will suffer all the more to be parted from them.

63. CH had not observed contact between C and T. She and C had a discussion about this and they had agreed that CH would not observe contact because at that time C was yet to meet T. They agreed it would not be good if the first meeting between T and C was one where the purpose of the contact was to assess C and her skills, because that was not putting T’s needs first. CH commented this was an example of C’s commitment, sensitivity and child-centred attitude. She acknowledged that if there had been contact much earlier and therefore an established relationship between C, her family and T by the time she came to write her report, again her recommendation may well have been different.

64. In cross-examination she accepted that specialist help in the form of a referral to experts such as the Attach team could help to mitigate difficulties which would inevitably be experienced by T if he were to be separated from his current carers.

65. Finally, in evidence, she said her recommendation might have been different if the foster carers had not been prepared to consider an open adoption. She said that an open adoption provided a means for T to maintain a relationship with his family and therefore it was not ‘necessary’ to move him from where he was. This part of her evidence troubles me the most; because she invites me drastically to change the narrative of T’s life from that which he was born to live. I felt similarly troubled when I read the notes of the 7^th December professionals’ meeting in which discussion is had about the possibility of A and B having more children and it being regarded as unlikely that C and D would be able to care for them as well as their own children and T. Life could work out well for T were he to stay with his current carers, spend time with his birth family on occasions and in time be joined by a sibling, but it is not for me to write that story for him. The law tells me to take a different approach, which must be anchored by consideration of his right to grow up within his own birth family, unless separation from his family is necessary to secure his welfare.

66. As with T’s social worker, I am in no doubt that the independent social worker has carried out a thorough and detailed analysis of the evidence she had gathered. Ultimately, I think that her summary correctly anticipates my difficulties with her conclusions; she has carried out a ‘best interests’ assessment, but I have to analyse the evidence and decide not what outcome might be ‘best’ for T in all the circumstances but to determine, having regard to all the circumstances, whether his welfare throughout his whole life necessitates a placement order being made.

C

67. C was very emotional throughout the hearing and when giving evidence, but she was nonetheless clear, consistent and firm in her evidence. I believe her when she says that she has from an early stage and consistently said to the local authority that she wants to care for T within his own family, and that she has never wavered from that. The emails in the file are consistent with what she has said in her evidence and to those carrying out the assessment. She has prepared a witness statement and a heartfelt letter. The proceedings have been bewildering and difficult, and she has not had legal representation throughout. She has not known what she could or should be asking to happen, she was trusting of the local authority’s processes, and I can understand why she has felt let down. She has put up with the intrusion of two full assessments, fully co-operated with them, the assessments were very positive about her and her family, and yet still the local authority did not back her.

68. Everybody involved with this case who has spent time with her has acknowledged that she has a gentle way with her, and they have recognised her significant experience as a very good parent. They acknowledge that when she did finally meet T she responded to him beautifully and that while he was unsettled in the car journeys home, he was not at all unsettled in the contacts themselves and had a lovely time playing alongside her baby M. This is plain to see in the contact records. C has not had an easy life, and was a carer to her younger siblings at a very young age. Despite the difficulties that life has thrown at her she has achieved a very great deal, and her family is everything to her. She has a strong work ethic but has also raised four delightful children, and supported her two older children to have a good relationship with their father, while enjoying the benefits of a rewarding relationship with their step-father. She has a loving and mutually supportive relationship with D. She provides vital support to her sister E with their nephew H. She and D have a great deal to offer T.

D

69. D was not called to give evidence but has put in a statement fully supporting C. If it is her qualities that have perhaps been emphasised before his, I should make it clear that he too has been assessed as having on his own substantial parenting experience, and that he would fully play his part if T were placed within the family.

KC, guardian

70. KC was H’s guardian and although not T’s guardian from the outset she has been involved for the major part of the case. She is evidently reluctant to criticise others but in the particular circumstances of this case she has set out her concerns about the history of the proceedings and what she regards as the deficiencies in the local authority’s approach once T had been placed in a foster-to-adopt placement.

71. In her analysis she has had regard to the relevant welfare factors, but has in my view rightly emphasised the need to focus on the necessity and proportionality of the orders sought. Over the weekend before the final hearing the guardian produced a supplementary and detailed welfare analysis document. I am satisfied that the factors set out there are, as she said, covered in her final report and this later document is her showing her working - she was not finding evidence to fill any gaps in her analysis or justify her reasoning after the event.

72. Her oral evidence was assured, well-reasoned and balanced and I pay very close attention and give very significant weight to her views. I do not accept the criticisms made by the local authority that she has not spent sufficient time with C; she is entitled to rely upon the evidence within the two special guardian assessments. Unlike KH and CH she did however have the opportunity to see T with C and D and their two younger children in contact. Her opinion is in my judgment based on a thorough and fair assessment of all the evidence in the case.

Threshold

73. There is no dispute that the threshold for making public law orders is crossed in that at the time protective measures were taken, T had suffered and was at continuing risk of suffering significant harm attributable to the care given to him by his parents within the meaning of section 31 of the Children Act 1989. He was born withdrawing from illicit drugs and had a very high level of care need. Neither of his parents was in a position to safeguard his welfare.

74. I therefore proceed to the second question and consider what, if any, orders are required to secure T’s welfare throughout his life.

Welfare checklists

75. I must have regard to the welfare checklists set out at section 1(3) of the Children Act 1989 and section 1(4) of the Adoption and Children Act 2002. I deal first with those items which are common to both lists.

The ascertainable wishes and feelings of the child (s1(3)(a)/s1(4)(a))

76. Obviously T is too young to give a view himself. Demonstrably he loves his present carers who are the only family he has ever known and he has a strong bond with them both, in particular G. At this time it would be expected that all he would want would be to remain in their care. As he grows older, and throughout his whole life, it is, as the guardian posits, reasonable to assume that he may wish to have had the opportunity to be raised within his own birth family and to know his brother, cousins and other family members.

The physical emotional and educational needs of the child (s1(3)(b)/the child’s particular needs (s1(4)(b))

77. T is a baby who continues to rely upon adults to meet all his daily needs round the clock; to keep him safe, to feed him, wash him, change him, settle him when he cries, establish a routine of sleeping, play with him, to anticipate and to provide him with everything he needs. Because he was exposed to drugs in the womb, his physical and emotional needs are greater than those of other children his age and those enhanced needs are likely to persist long-term. The independent social worker identified a ‘predisposition to sensitivity, emotional and possible future behavioural and learning difficulties such as ADHD’. He demands a very great deal of one to one attention. While affectionate and fun, he can be an exhausting child to care for, particularly because he still wakes very often in the night and has been described as a ‘needy’ baby.

78. As he grows older his needs will change and his carers will need to respond and react to those changing needs.

Age, sex, background and other relevant circumstances, child’s characteristics which are relevant (s1(3)(c)/s1(4)(d)

79. There is nothing to add to the previous paragraph in this respect.

(d) Harm or risk of harm (s1(3)(d)/s1(4)(e), and likely effect of any change in circumstances s1(3)(e)

80. T has suffered harm and would be at risk of harm if placed into his parents’ care, and therefore if no order were made.

81. If he were placed for adoption, it would be with his current carers, there would be no need to move him, and his happy and settled life would continue as it is now. He would continue to receive the very best care. The risk of harm to him is emotional harm at some unknown unspecified time in the future as a consequence of living life as an adopted child. However much he is loved and cared for, if placed for adoption, he is very likely to actually suffer, throughout his life, from the loss of his brother, parents, uncle and aunt and wider family. This may well be mitigated by his seeing them regularly as is proposed, however, he may well question why it is that a place was not found for him within his birth family, when room was made for H, his full sibling. He may grow up feeling that there was something about him that was not good enough. He may as a teenager begin to feel resentful of his adoptive parents for depriving him of his ‘real’ family. It is right to acknowledge however, that it is by no means certain; with good life story work, understanding and open-hearted adoptive parents, as G and F would appear to be, these feelings can be managed and mitigated and he may not suffer at all, or only to a minimal degree.

82. If he were removed from his current carers now he is highly likely to feel a great sense of abandonment and loss in the short term. Because he is only a baby he will be unable to understand or articulate his feelings, and this may make them difficult to manage and mitigate. On the other hand, at this age, the guardian’s view is that this emotional harm will be experienced in the short term only and she is less convinced that T would continue to suffer emotional harm as a consequence of his separation from his foster carers. She points out that the majority of babies made subject to care and placement orders move from one or more carers before moving to their permanent placement and it is not suggested that they will suffer long-term emotional harm as a consequence.

83. The guardian’s view, which I accept, is that if T were to be separated from his current carers then he and his paternal family would nonetheless need support in order to enable him to develop a safe and secure attachment to his new carers. She draws on her experience in particular with placing children from foster care into placements with prospective adopters. However, she suggests, and I accept, that the signs are good in that T has developed a strong bond with his current carers and that attachment is likely to be able to be transferred. There are specialist resources, including the Attach team, to which a referral could be made to help both T and the new carers build a safe and secure attachment.

84. It is said by the local authority, and the independent social worker, that the fact of his placement being a foster-to-adopt has meant that his carers have not prepared him to be ‘moved on’ and to form a new attachment, but have devoted themselves to his care as his prospective parents, and therefore his attachment to them is of a different order than in the usual case. I see the point, particularly from the perspective of the carers themselves, but my focus has to be T, and I have not been provided with any expert evidence that his attachment to his primary carer is of a wholly different kind than might be found between any baby and his kind and caring professional sole foster carer, nor evidence that the harm likely to be suffered by T on separation would be longer-lasting or of deeper effect than might ordinarily be expected.

85. If placed with his aunt and uncle, as opposed to remaining in his current placement, there is some risk that T may suffer emotional harm as a consequence of the loss of an opportunity to have a mum and dad of his own. T may grow up feeling resentful that he was deprived of the opportunity to have a ‘normal’ family, and to be the very centre of his adoptive parents’ world. However lovely C and D are, what is proposed is that they will be his special guardians not his parents; he will be a nephew, a cousin, but not a son.

Capability of the parents and relevant others (s1(3)(f))

86. C and D are experienced parents of their own children and have also had the experience of looking after H who presents with some behavioural challenges as a consequence of the experiences he has had in his parents’ care. There is no suggestion that they are not well able to cope with H’s needs; this is vital and relevant experience which would help them to parent T.

87. Although ultimately she does not recommend placement of T with them, CH’s assessment of C and D is that they would be more than capable of providing a loving home to their nephew. Her report contains a thoroughly positive assessment.

88. KH’s report had previously recommended C and D as special guardians for T.

89. The Court’s assessment of the parents’ or relevant persons’ ability to discharge their responsibilities toward their child must take into account the assistance and support which the local authority would offer. The President of the Family Division said in Re B-S [2013] EWCA Civ 1146:

‘It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.’

90. I have had regard to the Special Guardianship support plans. The measures of support would benefit C and D, and it is accepted that if T were placed with them they would be able to work co-operatively with the local authority so as to ensure that T derived benefit from the help and support offered.

91. The cases of Re T and Re W above, are clear that I cannot at this pre-placement stage carry out any comparative assessment of F and G as potential parents. They are foster parents, not prospective adopters, and I must focus my attention on the need or otherwise for a placement order in principle, not their individual capabilities as potential parents.

92. I now turn to the additional factors that appear at section 1(4) of the Adoption and Children Act 2002.

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 (s1(4)(c)

93. Even in the event that a child is placed in a loving, secure and stable adoptive placement, the effect on any child of having been adopted is lifelong. The potential for emotional harm is increased where the adoption was opposed by the birth family, and is increased even further where a sibling of the child remains within the original family, having regular contact with wider family members. In these circumstances, however happy the life is that he leads, T may be expected to feel grief at the loss of his birth parents, aunt, uncle, cousins and wider family.

94. The risk of harm to T is probably lessened by virtue of his having been looked after devotedly by the same carers since his discharge from hospital, and if placed for adoption he would remain in their care. Nevertheless, while it is impossible to predict the long-term effects on an eleven month old baby of being adopted, having regard to the evidence in this case, and noting that this is acknowledged by his social worker, by CH and the guardian, I am satisfied that there is potential that significant harm that may be caused to T as a result of an adoption order being made.

The relationship the child has with relatives or other relevant persons 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 the child’s relatives or other relevant persons to provide the child with a secure environment in which the child can develop otherwise to meet the child’s needs; and

(iii) the wishes and feelings of the child’s relatives or other relevant persons regarding the child (s1(4)(f)).

95. T has had only a few contacts with his birth parents and sadly they have accepted that they are not in a position to put themselves forward as his carers at this time.

96. More recently over the course of twelve contacts with his aunt and uncle, T has built up some connection to his birth family. Through them he has the potential to get to know and to become a part of a much wider family of uncles, aunts, cousins as well as to know his full brother H, and other members of the paternal and potentially the maternal family. That the connection is not better established at this time is not T’s fault nor the fault of C and D; they were not offered contact earlier when they should have been. From where we are now, the signs are very positive that with more time the relationship could deepen and flourish.

97. T is a much loved child and his relatives would wish for him to be brought up within the family to which he was born. They are willing and able to do so. His sense of identity as part of the family would be strengthened by attending family events, sharing holidays and Christmases together, receiving and giving birthday cards and presents and acknowledgments of achievements throughout his life.

98. If placed for adoption he could continue to have the benefit of knowing his birth family because it is known that the present carers would support an open adoption. However the relationship with his birth family would inevitably not be of the same quality as if he were living in the family and it carries with it a risk of resentment and confusion.

99. Were he to grow up as the treasured child of adoptive parents he would of course be at the very heart of their family and he would share in many experiences with members of that family and form an essential part of it, but at the cost of his relationship with his birth family being compromised.

100. T’s current carers hope to become his prospective adopters but they are foster parents and the foster to adopt placement does not give them any higher status in law. They have devoted themselves to T and are willing, able and desperately want to be allowed to continue to care for him and provide for his needs throughout his life. Again, I remind myself that I must not be drawn into a comparative analysis of the particular qualities of the foster carers as potential adopters at this stage where I am asked only to go so far as to consider the principle of placement. However, for the avoidance of doubt, so far as it is said by the independent social worker and T’s social worker that C and D could not meet T’s needs in the way that his foster parents could, I agree with the analysis of the guardian, who disputes this. She writes:

‘I cannot endorse this viewpoint. If T’s current carers were not approved as adopters, the ISW could not have reached this conclusion. I note that the ISW has not observed contact between T and his aunt and uncle. In the long-term, being able to remain in his birth family is likely to bring T additional emotional benefits. If it was the case that babies like T were irreversibly damaged by moving placement at the age of around one year, and future carers were unable to meet their needs as a result, then local authorities would be unlikely to seek care and placement orders at all.

101. Although it has been asserted by the local authority that T is not like other babies, that his needs are exceptional and that his attachment to his carers is exceptional, I have not been provided with expert evidence which supports such a conclusion, and I remind myself that the evidence from the kinship assessments is that C and D could meet his needs (the independent social worker ultimately concludes that the foster parents could meet his emotional needs better, but she fairly accepted she had not carried out any specific assessment of the attachment).

The range of orders available to the Court (CA1989 s1(3)(g)/ACA2002 s1(6)

102. In coming to a decision relating to the adoption of a child a court must always consider the whole range of powers available to it in the child’s case and the court must not make any order unless it considers that making the order would be better for the child than not doing so.

103. I have considered carefully the evidence of all the witnesses, the care plans of the local authority and all the documents within the bundle. I have had regard to the relevant welfare checklists.

104. I am mindful that any order which interferes with the relationship between a child and their family is only justified by the overriding necessity of the interests of the child.

Placement for adoption

105. The advantages to placing T for adoption are that he would not have to move from his current placement, he could remain with his current carers who love him dearly and could provide him with consistently excellent care, meeting all his physical, emotional and educational needs as he progresses through life, and giving him the opportunity to be a part of a family unit with all the potential advantages and stability that is likely to bring to him. He has the chance to have a mum and dad of his own.

106. On the other hand, if adopted, T would grow up aware that by birth he belonged to a different family and has parents, a brother, cousins, aunts, uncles and other relatives. He may well suffer feelings of abandonment and grief throughout his whole life, at being separated from his birth family. That may further be exacerbated by the later knowledge that his brother H was able to remain in the family, but not him. Even though it is proposed to mitigate these difficulties by maintaining regular contact between T and H and other members of his birth family, that contact is not going to get close to what he might experience as a full member of the family, growing up at its heart.

Placement with aunt and uncle

107. T would grow up in his birth family and he would be looked after by loving and capable carers who have successfully raised four happy, healthy, and delightful children. He would see his full brother H regularly and grow up knowing his cousins and other family members.

108. Because his parents cannot care for him and it is not proposed that he is adopted he would never have the chance of having a ‘normal’ family with a mum and a dad who loved him and prioritised his needs before anyone else’s. Despite the efforts of his uncle and aunt, he may grow up feeling like a second class citizen within the family unit. He is likely to find the separation from his current carers traumatic, and the move from a quieter household where he is the main focus to being the youngest of five in a crowded and busy household may be very difficult for him to cope with.

Conclusions

109. When the competing options are placed alongside each other in this way the outcome looks uncomfortably and finely balanced. However, my task is not to try to select which is the ‘best’ future for T, or who may provide the ‘best’ care to him, but to look at his welfare needs throughout his whole life, and to consider whether in principle, those needs can only be met by his being placed for adoption. In my judgment, having regard to all the factors on the welfare checklist, and considering that an order placing a child for adoption should only be made if the overriding necessity of the interests of the child demand it, I am satisfied that T’s welfare is met by his being placed within his birth family.

110. While there may be advantages to placement for adoption in terms of long-term security and likelihood of stability, consistency and robust parenting, I am not persuaded the balance is tipped in favour of adoption. But even if I were, it is not my role to identify the ‘best option’ nor the least risky option for T. It is only in circumstances where I am satisfied that the only way T’s welfare could be secured is by the making of care and placement orders that I should do so, i.e. that ‘nothing else will do’.

111. After careful consideration of the evidence in the case I am not satisfied that the local authority has established that nothing else but placement for adoption would do to meet T’s welfare needs throughout his whole life. I do not approve the local authority’s plan and refuse the application for a care order.

112. I am acutely aware of the pain that this decision will cause to T’s current carers and I am aware that I have come to a different conclusion than that of T’s social worker as well as the independent social worker CH. In summary, my reasons for departing from their views are as follows:

(i) I have had the benefit of seeing C give evidence and I have read the viability assessment, and social work evidence, KH’s assessment, CH’s assessment, C’s own witness evidence and letters, and I have seen the contact notes. This amounts to a large body of evidence which confirms my impression that C is a gentle and kind person for whom family is everything, and that she, supported fully by D, is fiercely committed to raising her nephew as she would her own child and to support him to adulthood and beyond. She is an experienced and capable parent with four delightful children to her credit and she would be in my judgment well able to make room for T in her family and to look after him throughout his childhood and into adulthood;

(ii) It has been said that because of his particular needs, T could not be cared for by anyone other than his current carers without harm coming to him. While I acknowledge the very high standard of care that he has received, I do not accept this proposition. The foster to adopt placement does not give any precedence or any rights to his current carers or require me to carry out an assessment of their individual qualities as carers. While there is evidence that by virtue of being exposed to drugs in the womb T is a ‘needy’ child and he has had a difficult start to life, and that those additional needs may extend throughout his childhood, there is not expert evidence before the Court that his needs are such that he requires a particular level of specialist or one-to-one care that could not be met by his aunt and her family with the appropriate support in place;

(iii) The local authority has approached the case solely on a ‘best interests’ test but that is not the test to apply. I have had careful regard to the case law and I am satisfied that the guardian’s approach is the correct one, that having applied the welfare checklist and weighed those factors in the balance, the question of proportionality is key. On that analysis this child cannot be placed for adoption because he has a family who are able to care for him;

(iv) The independent social worker essentially came to the view that T could have the best of both worlds, and that there was no need to move him because he could stay where he was and have an open adoption. At the meeting it was raised that if more children came they would not have a home with C and D; this sort of thinking tends towards social engineering; finding a solution that is the best fit. While I acknowledge the desire to find a workable outcome for everyone and to avoid heartbreak, this approach goes completely against T’s and his birth families’ right to a family life and all that the case law to which I have been referred emphasises again and again. Applying the principles set out in those cases, I cannot make an order that interferes with T’s and his family life so drastically on the basis that it might lead to a better outcome for all. That would be social engineering. I could only make such an order if his welfare required me so to do. It does not, because he can be cared for by his aunt and uncle;

(v) I have paid close attention to the guardian’s views which are well reasoned and supported by the evidence, with a detailed welfare analysis. There is no good reason to depart from her recommendations in this case.

What order should the Court make?

113. The application for a placement order falls away with the refusal of the application for a care order.

114. No party is suggesting that I should depart from the guidance from higher courts, most recently from Keehan J, that special guardianship orders should not be made in circumstances where the child has not yet been placed with the prospective special guardians.

115. I am grateful to the parties and legal representatives for their thoughtful consideration of the potential orders. In submissions, and based on full instructions, it was the position of the local authority, supported by the other parties, that the appropriate order to make if I rejected its care plan would be an interim care order with a view to C and D applying for a special guardianship order (which would be supported by the two positive assessments of them already carried out) within a relatively short period of time. CP has helpfully drafted a transition plan in the event that I rejected the application for care and placement orders.

116. The obvious disadvantage of extending the interim care orders is that these proceedings, which are already long overdue, would be delayed even further, and delay is contrary to T’s welfare.

117. However, the advantages are that:

· T would have the benefit of the continued support of his current social worker who is very committed to T. She could assist with implementation of the transition plan, and make any necessary referrals for example to Attach to help him settle;

· C and D would have the benefit of all the measures of support set out in the special guardianship support package as temporary foster carers, including an allowance for T’s care, and the benefit of continued legal advice and legal representation and advice until the proceedings were concluded with a special guardianship order;

· Albeit delayed, the proceedings could be concluded within a relatively short time, avoiding the need for a further set of proceedings in due course in order to deal with applications for Special Guardianship orders.

118. As two special guardianship assessments have been carried out it is not envisaged that there would be a very significant delay before the Court would be in a position to consider making final orders, and in all the circumstances I am persuaded that this course is the appropriate one.

119. A final care order would be inconsistent with the intention of a transition to C and D within a relatively short time. There would be an unnecessary change of social work team and a risk that special guardianship orders would be delayed. A final care order would give the local authority parental responsibility for T for longer than his welfare would require; it would be disproportionate intervention.

120. A child arrangements order does not bring with it the level of support from the local authority that all parties recognise would be needed in order to support T to make the transition to C and D.

121. Having considered the various options I am persuaded that the parties’ agreed approach is a good one. I propose to continue the interim care orders for a further period of time in order to enable support with implementation of the transition plan and it is hoped, the making of special guardianship orders within a relatively short time-frame.

122. I appreciate the pain that will be caused to F and G as a result of my decision and I have written a letter to them.

123. I wish C, D and their family the very best for the future.

124. T’s parents came to Court on the last day of the hearing just as I had finished giving judgment. I appreciated that they were there to show their commitment to their son and their support for C and D who have so generously offered to care for him. Although they cannot put themselves forward to care for him at this time, I know that they love him and I hope that they will be able in time to make positive changes in their lives so that they may be able to know T and to spend time with him in the future.

Joanna Vincent

Her Honour Judge Vincent

14^th July 2017