CASE No. DE16CO0355
IN THE FAMILY COURT SITTING AT DERBY
Before His Honour Judge Bellamy
(judgment handed down on 15thMarch 2018)
Re A, B, C, D and E (Children: Placement Orders: Separating Siblings)
Gordon Semple, counsel for the local authority
Dee Khunkhuna, solicitor for the mother
Anthony Finch, counsel for the father
James Cleary, counsel for the grandmother
Christopher Sedgwick, solicitor for the children
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
1. In December 2016 Derbyshire County Council (‘the local authority’) applied to the court for care orders in respect of four children, Child A, now aged 11, Child B, now aged 4, Child C, now aged 3 and Child D, now aged 2. A fifth child, Child E was born in March 2017. He is now aged 1. Care proceedings in respect of Child E were commenced at birth and were consolidated with the earlier proceedings.
2. The mother of all five children is MK (‘the mother’). The identity of Child A’s father is unknown. The father of the younger four children is FZ (‘the father’). The mother is white British. The father of the youngest four children is, and the father of the oldest child is said to be, Asian (Pakistani)/British. Also a party to these proceedings is GK, the children’s maternal grandmother (‘the grandmother’).
3. The care proceedings came on for final hearing before me on 14thand 15thAugust 2017. I handed down a written judgment on 24thAugust – Re A, B, C, D and E (Children: Care Plans)  EWFC B56. The background history is set out fully in my earlier judgment. This judgment is effectively a continuation of that earlier judgment. I do not propose to set out the background history again.
4. The parents concede that the threshold set by s.31(2) of the Children Act 1989 is met. They also concede that care orders should be made in respect of all five children. The area of dispute relates to the local authority’s final care plans. At the time of the earlier hearing the oldest four children were placed together in a single foster placement. Child E was in a separate foster placement. Those arrangements remain unchanged. The local authority’s final care plans proposed that the oldest four children should be separated. I concluded that it was not appropriate for me to approve any of the final care plans. I had two particular concerns. Firstly, I was concerned to establish whether any of the older four children could remain in their current foster placement in which they are all thriving. It was quickly established that the foster carers were prepared to provide long-term foster care for Child A and that the local authority was prepared to continue to meet the cost of that placement (the foster carers being agency foster carers). Secondly, I was concerned about the likely impact on the older four children of separating them as a sibling group. I said that I was,
‘130. …satisfied that before the court can properly evaluate the local authority’s plans to separate the oldest four children there needs to be an expert assessment of the children by an appropriately experienced child psychologist. The areas for assessment are, with respect to each of the oldest four children, the likely impact on their emotional wellbeing of separation from their siblings and of contact between Child A and his siblings being restricted to annual letterbox contact.’.’
I gave the parties permission to obtain a psychological assessment of the children from Dr Gill I’Anson, a Consultant Child & Family Psychologist.
Recent litigation history
5. A final welfare hearing was listed to take place on 2ndJanuary 2018. Dr I’Anson was the only witness to give oral evidence. Lack of court time meant that it was not possible to hear closing submissions. The hearing was adjourned to 4thJanuary.
6. I heard final submissions on 4thJanuary. I reserved judgment. I indicated that I would hand down judgment on 22ndJanuary. A draft of the judgment was sent to the advocates in advance of that hearing.
7. At the hearing on 22ndJanuary the guardian’s solicitor challenged my note of Dr I’Anson’s oral evidence. The judgment was not formally handed down. Instead, I ordered that there should be a transcript of Dr I’Anson’s oral evidence. The handing down of judgment was adjourned until 8thFebruary.
8. At the hearing on 8thFebruary, having read the transcript of Dr I’Anson’s oral evidence, the parties were agreed that there was one aspect of her evidence which required clarification. I agreed to a further question being put to her in writing, approved the draft of that question and gave consequential case management directions including permission to the parties to put in further written submissions by 7thMarch. I indicated that I would hand down my final judgment on 15thMarch.
9. The local authority filed amended final care plans dated 1stMarch. Written submissions on behalf of the local authority were received on 7thMarch. Those submissions raised, in my mind, concerns about the interpretation to be placed on the amended final care plans for the younger four children. I ordered the allocated social worker to file a further statement by 12thMarch to clarify the local authority’s position.
10. On 26thFebruary I received a letter from Child A setting out his wishes and feelings concerning future contact arrangements. The letter was prepared for him by PM, an advocate from the Derbyshire Advocacy Service. In his written submissions on behalf of the guardian, Mr Christopher Sedgwick raised concerns about the circumstances in which that letter came to be written. I directed the local authority to file a statement from the advocate by 12thMarch.
11. I have received the further statement of the allocated social worker and a statement from Child A’s advocate. I have considered all of the evidence and submissions relating to welfare issues. This is my final judgment on all outstanding issues.
12. Dr I’Anson has read all of the relevant case papers. She has undertaken a psychometric assessment and a clinical assessment of all five children. She has observed contact between the children and their parents and grandmother. Dr I’Anson has prepared a written report. She has also answered written questions. She has given oral evidence. She subsequently answered a written question agreed by the parties and approved by the court.
13. In her report, Dr I’Anson sets out a profile of each child:
‘Child A has an Insecure Ambivalent Attachment style and Low Average Cognitive Functioning. He reported experiencing a High level of difficulty getting along with other children, Very Low kind and helpful behaviour towards others and Below Average Self-Esteem (Parental, Social and Academic). Some of Child A’s responses during assessment were indicative of significant under-responding and some Emotional Avoidance.
[The foster carer] reported that Child A demonstrates Very Low kind and helpful behaviour towards others and shows High levels of Behavioural Difficulties.’
‘Child B has an Insecure Ambivalent Attachment Style and Very Low Cognitive Functioning. [The foster carer] did not report that Child B demonstrates any signs of experiencing any significant emotional or psychological distress, though did report that he has slightly raised levels of difficulty in getting along with other children, and demonstrates Very Low kind and helpful behaviour towards others.’
‘Child C has an Insecure Ambivalent Attachment Style and Low Cognitive Functioning. [The foster carer] did not report that Child C demonstrates any signs of experiencing any significant emotional or psychological distress, though did report that he shows a High level of difficulty in getting along with other children, and demonstrates Slightly Low kind and helpful behaviour towards others.’
‘Child D has an Insecure Ambivalent Attachment style, with developmental delays of up to 9 months behind what is expected for her chronological age. [The foster carer] did not report that Child D demonstrates any signs of experiencing any significant emotional or psychological distress, though did report that she shows Very Low kind and helpful behaviour towards others.’
‘Child E does not show any signs/symptoms of Developmental Trauma. His developmental/cognitive functioning is largely at the level expected for an infant of his age, and he presented as a happy and healthy baby.’
14. It was clear from Dr I’Anson’s oral evidence that there is some correlation between the extent of each child’s difficulties and the length of time that child has been in the care of the parents. Child A is the most emotionally avoidant of the four children. Dr I’Anson noted that Child B and Child C deal with their emotions ‘in a truncated way’. They have low cognitive functioning but, in her opinion, in the right environment there is a possibility of this increasing. Child D’s cognitive functioning is ‘a bit behind’ but is more secure than her older brothers. Child E does not present with the same problems as his older siblings. Child E has never lived in the care of his parents.
15. Dr I’Anson was asked to advise whether Child A should have direct contact with his siblings if he is placed in long-term foster care and they are placed for adoption. In her report, Dr I’Anson responded:
‘58. During my discussion with Child A, he was clear that contact with [his] mother and maternal Grandmother was as important to him as contact with his siblings. My professional opinion is that sibling relationships tend to provide a longevity of relationships and a protective factor to the wellbeing of the individual child. I would therefore generally believe that such relationships provide more positives in the long term and should take priority over relationships with parents and Grandparents, when…the two are not compatible.’
In coming to that view Dr I’Anson accepted that if he had to make a choice Child A would probably choose to have direct contact with his mother and grandmother.
16. In his cross-examination of Dr I’Anson, Mr Sedgwick, endeavoured to persuade her to change her position and agree with the guardian that direct contact between Child A and his mother and grandmother should be prioritised above direct contact with his younger siblings:
Q: Your analysis in your report in relation to Child A is that if there was a conflict that he couldn't have both sets of direct contact, that sibling contact should prevail. Does that remain your view?
A: Yes. I felt it was important for that to be thoroughly explored, and, from a psychological point of view, as we've already discussed, that's the most protective factor for his long-term wellbeing. So, if there was a conflict between the two, in my opinion sibling contact should be prioritised if at all possible in the circumstances. I do, however, without jumping to your next question, take into consideration the complexity of the situation…
Q: And, to repeat, the guardian feels that direct contact between Child A and his mother and grandmother, if there had to be a choice, would be the preferred choice. Are you continuing to say the opposite?
A: I take on board both the guardian's concerns, whether the realities of the situation is that the contact between his, hopefully, adoptive younger siblings and Child A remaining in foster care would be, first of all, possible, and, two, at a level that meets his needs. I also take on board the information in [the social worker’s] statement when she consulted the family-finding team, who said that they felt that that would be very difficult to achieve. So, I think it was important to thoroughly explore that, and I certainly felt that that should be the first port of call. If that's not going to be possible then I certainly understand the guardian's conclusion…
Q: And in terms of Child A, another factor, of course, is that he's aware of his family and who they are and what the plans are. But another factor, surely, is –
A: Yes, he is.
Q: -- the issue of contact. And if it was felt that the youngest four's placement would be put into jeopardy by Child A having contact with them then potentially he could stop having contact with his mother and grandmother and then he would only have contact [with his siblings] at the rate of three times a year.
Q: Wouldn't he have a feeling of loss and feel cut adrift by contact only happening three times a year?
A: Well, that would be direct contact, if that was the case. It comes back to a whole balancing act. The ability for that placement to meet his needs is going to be the biggest factor. That is the most important and that can be supported through therapy. In terms of contact, it's important but contact in itself is not going to be the most deciding factor. So, I do understand the concern that if he ends up not having contact ... Can I just clarify? The sound wasn't terribly good then. If he ended up not having contact with his mother and grandmother, you were saying?
Q: Yes -- and only having contact with his siblings three times a year.
A: Three times a year, yes. Well, if that contact is of good quality and there is indirect contact also, I think that that can be a positive. I think that that can be okay for him. However, I do understand the concerns are whether that, one, can be achieved, and, two, the position that that might put him in when he is 18 and how that information is protected, and he is not put in a position that puts him under undue stress in terms of the information that he has. So, I think the question that you're asking, I guess, has got caveats around it which make it slightly more complicated, in my opinion…
Q: Because if I distil this correctly, what you're saying in relation to Child A is that it's fundamentally important that his placement is secure, which it currently is. Is that right?
Q: In an ideal world he would have contact with his mother and grandmother at a good frequency and he would also have direct contact with his siblings at least three times a year. That's the ideal world, isn't it?
A: If that were achievable, that would be the ideal world. If it were achievable then that would meet his needs the best, if possible.
Q: But if it was felt that the ideal world couldn't be managed and it wasn't possible and there was too much risk for the youngest four and their potential placement, the dilemma is, if he has to have only one set of contact, does he have that with his mother and grandmother or with his siblings? Which is sacrificed? The guardian's analysis is that mother and grandmother should prevail, and your analysis is that sibling contact should prevail. Is that right?
A: Well, I think overall sibling contact should be prioritised. However, if it is felt by the professionals involved that gaining a good level of contact agreement from the adopters of the younger children with a child that remains in foster care who may still have indirect contact with their family and also will reach the age of majority a lot sooner than the younger children, that that really proves to be very difficult in then achieving that contact between Child A and his younger siblings, which I think is, from my reading of the guardian's statement, his conclusion -- and also, as I say, [the social worker’s] statement -- then that throws a slightly different light on the situation. So, in those circumstances I can certainly then understand why, if its' not achievable, if that level of contact is unlikely to be achieved and the additional pressures that may then be put on Child A are taken into consideration, and I concur with the guardian's conclusions that, in those circumstances, perhaps the best for Child A's wellbeing is to continue to have contact with his mother and grandmother.
I simply was trying to put forward the argument that, if at all possible, that sibling contact has better outcomes for wellbeing for the child and that that should be really thoroughly explored and cost-benefit analysis explored with that. And I guess that's been done to some extent since my report. And I don't know whether it's felt that any more can be done on that or not.
Q: Okay. It's a terrible dilemma in relation to Child A because what is best for him may not be best for others.
Q: Is your position now changed in that you support the analysis of the guardian?
A: I can certainly understand the conclusion that the guardian's come to, yes. I think particularly ( Inaudible ) the information from the family-finding team that they felt that that was highly unlikely to be achieved has to be considered, and I presume that the guardian has considered that also.
17. Dr I’Anson was asked to consider the likely impact on Child A of not being allowed to have direct contact with his four younger siblings. In her report she says that in her opinion it is inevitable that Child A would experience this as a loss. However, given that he is settled and thriving in his present foster placement, that placement must be prioritised. That will provide him with stability in both home and attachment relationships with his carers. If Child A is not able to have direct contact with his younger siblings then Dr I’Anson makes the point that,
‘65. …having the support and understanding of his carers, to allow him to discuss his feelings, which may be contradictory at times, will be important. Child A may also benefit from receiving some therapeutic support regarding his situation and experience of change/loss. I would recommend therapy for him and therapeutic support for his carers.’
18. Dr I’Anson accepts that if Child A has direct contact with his mother, grandmother and siblings there is a risk that the adults would put Child A under pressure to divulge information concerning his siblings and their placements and that that could undermine those adoptive placements. In her report, Dr I’Anson says that she has,
‘59. …some concerns regarding the ability of [the mother] and [grandmother] to sensitively and reliably meet Child A’s needs. From the documentation available to me, specifically the Parenting Assessment and contact notes, it is apparent that both adults have often been focussed on expressing their own views and feelings during contact without consideration for the children’s needs. There have also been concerns regarding [the mother’s] substance misuse and a lack of consistency of attending contact with Child E, resulting in his contact being reduced. Given these concerns and the potential for these relationships to cause him further emotional harm, I would be concerned if Child A were to lose his direct contact with his siblings, in order to prioritise contact with his mother and grandmother.’
19. Mr Cleary, counsel for the grandmother, took this issue up with Dr I’Anson in cross-examination. Having challenged Dr I’Anson that, on his instructions, she had only spent 20 minutes meeting with the grandmother, he asked her how she considered herself able to comment upon the quality of contact between Child A, the other siblings, the mother and grandmother. She replied,
‘Well, I wasn't asked a direct question about the quality of contact in my report, but what I did talk about was from the information I had available to me from the other documentation in terms of the contact notes that had gone before and also some of the other assessments, so that was my reference that I referenced in my report. And what I was saying was that we shouldn't assume that contact with mum and grandma could meet Child A's needs. I hope that it can but that needs to be carefully thought about and considered. And I think it's really important that mum and grandmother understand that, for Child A, his attachment to his foster carer is now going to be his primary attachment and that that's really important and that their support of that and not undermining of that is what he needs for his longer-term benefit and wellbeing. So that's really important.
So, my concern was, given the information in the documents that I had, I wasn't raising a specific concern from the, as you say, time that I spent with them; it was more about looking at how the children interacted during that contact. So that was a limited time. It was looking at some of the other documentation that I had. I was simply raising the fact that we shouldn't assume that contact can meet Child A's needs and should be ( Inaudible ) sibling. I think we've dealt with that in terms of which should be prioritised, in my answers to Mr Sedgwick's questions, but that was my point.’
20. It is this issue of whether to prioritise Child A’s contact with his mother and grandmother above contact with his siblings that prompted the additional question being put to Dr I’Anson following the hearing on 8thFebruary. She was asked:
‘(a) In light of the position expressed by [the guardian] do you now:
(i) Agree with his position, and/or
(ii) Defer to his position?
Dr I’Anson responded as follows:
‘The information provided by the Local Authority’s Family Finding Team suggests that finding adoptive placements with adoptive parents who will maintain regular contact with a sibling whom remains in long term foster care is unlikely. There is also the significant issue of Child A reaching the age of majority, and therefore he may have (unsupervised) contact with his mother and grandmother, at a time when his siblings will still be young and hopefully in adoptive placements. This may put pressure on Child A to disclose information to his birth family regarding his siblings, which he may have gleaned through sibling contact, potentially putting Child A in a harmful situation and negatively impacting his younger siblings’ adoptive placements.
The above two factors are significant and need to be balanced against the positive impact of long term sibling relationships and the concerns I raised in my substantive report concerning Child A’s mother and grandmother’s ability to meet Child A’s needs reliably through contact.
In conclusion, and given the above information, I agree with the guardian that on balance prioritising contact with Child A’s mother and Grandmother may be the most appropriate course of action. However, I am concerned that this contact is monitored for its ability to reliably meet Child A’s needs.’
21. The next important issue on which Dr I’Anson’s opinion was sought concerned the likely impact on the children of separating them from one another. In her report, Dr I’Anson said that,
‘62. Sibling relationships provide a protective factor and therefore should be prioritised. Generally, siblings placed together, if at all possible, is preferable. Failing this, direct regular contact is preferable. If direct contact is not possible, regular indirect contact is appropriate. Such contact allows the children to maintain some attachment and knowledge of one another throughout their childhood, therefore providing several benefits to the individual child. They have information about the wellbeing of their sibling, knowledge that their sibling is also ‘looked after’ and not with their parents (similar situation to themselves), the opportunity to know each other’s characteristics and facts about one another’s life and ultimately these relationships extend into adulthood, post placement. As stated above, the consistency of maintaining sibling relationships, also means the child does not suffer a further loss of family relationship and the impact this has for their identity, both in the long and short term.
63. The accurate impact on each individual child is currently unknown, but can be ameliorated by contact as described above, and the placement’s ability to sensitively meet their needs. However, it is clear that sibling contact is a significant protective factor.’
22. Dr I’Anson supports placement of Child B and Child C together and placement of Child D and Child E together. She says,
‘70. From the information gathered during my assessment, regarding the relationships between Child B, Child C and Child D, it may be beneficial to consider Child D being placed with Child E and Child B and Child C remaining together. This is based on the information gleaned from [the foster carer], Child C and Child D’s play school and my observation of the children together. Child B and Child C reportedly get on better when there are just the two of them, rather than when Child D is present, and the boys often behave negatively towards Child D, as reported by [the foster mother]. My observation that Child D tends to play more independently of her brothers, is consistent with information from play-school, where Child C and Child D attend, and also from [the foster mother]. That is not to underestimate the importance of these sibling relationships, but the information I have available to me is suggestive that a separate placement from her older brothers, ideally with her younger brother Child E, whilst ideally maintaining sibling contact with Child B and Child C, may be the most appropriate placement configuration for meeting the children’s needs. In addition, this may be a more realistic placement option than finding a placement to take three children.’
23. At the time when Dr I’Anson gave oral evidence (2ndJanuary), the final care plans for the four younger children contained a contingency plan of seeking four separate adoptive placements if two two-child placements cannot be found. Dr I’Anson’s opinion on this issue was explored in detail in her oral evidence. When examined by the solicitor for the guardian the following exchange took place:
Q: When this matter came before the court in August, His Honour was very concerned about the impact on the children of separation from each other as a sibling group…And you say that the accurate impact on each individual child is currently unknown. That's right?
A: Yes. It would be impossible to predict exactly but certainly there are different factors which will influence that, and I've tried to set out some of those in my report and certainly I can discuss those today if that's helpful.
Q: Yes. In terms of the factors of minimising that distress, is a secure placement perhaps the most important?
A: Absolutely. The quality of the placement, the emotional and physical availability of the carers and the attachment experience is far and above the most influential factor in terms of the children's wellbeing. So, what that means is that, the children having access to such a placement and if that's better achieved in separate placements, in my professional opinion, that has a better impact on their long-term wellbeing than them all being together but in a placement that can't meet their needs quite so well.
JUDGE: When I dealt with this case in August, the local authority was very clear that it was not proposing to consider five separate placements for these children. In the care plans that I've read for today's hearing, the local authority appears to have changed its position and is proposing that they should look for two separate placements for a period of six months, one for Child B and Child C, one for Child D and Child E, and that if, in either event, they're unsuccessful at the end of six months, that they should look for separate placements. So there is a possibility of these five children ending up in five different placements. What impact is that likely to have on them if that were to be the ultimate outcome?
A: Yes. Thank you, your Honour. So, it's a balancing act, in my opinion. After the quality of the placement comes influences such as contact, being placed together and therapy. And obviously being placed together is a protective factor. Now, that doesn't need to be that all are placed together necessarily. Sometimes -- and from the information that I had from my assessment in this case -- it may be better that the children's needs can be met in two separate placements, which is what I suggested in my report I felt might be more helpful. And this was on the basis of the attachment information that I got from assessing the children, from speaking to their educational placements and also from speaking to the foster carer and observing them. So, it felt to me that the children might do better where they have a greater availability to a high level of care -- for example, new carers are not needing to look after four children together, in terms of looking after two -- but that they have the protective factor of, firstly, being with a sibling, so not on their own, if not absolutely necessary, but also I think I recommended a high level of quality direct and indirect contact also.
In terms of if they were placed separately, completely separately, again that has some negative factors in it because being placed with another sibling is a protective factor. However, the quality of that individual placement has the ability to ameliorate that and to provide the child with the level of care and attachment experience that they need. So, certainly from my point of view, the ideal would be that the children are placed in two and two -- Child B and Child C and Child D and Child E -- but with a good level of indirect and direct contact. That, from a psychological point of view, I felt that, with all the information I had about these children, that would probably be the best cost-benefit analysis of the situation…
JUDGE: following on from that, if these four younger children were to end up in four separate adoptive placements, would that mean that inter-sibling contact would become even more important for those four children?
A: Yes, your Honour. I think it would be very important indeed. So, such a scenario wouldn't mean that the children can't achieve a significant level of emotional development and wellbeing. I think they could if those placements were very good quality, then they could. But, yes, in terms of their contact, it would be really important. There's so much research and evidence to show that sibling contact is such a significant protective factor long-term.
Q: So, you used the word "important". Perhaps another word could be "crucial"?
A: I think so.
Q: And if that direct contact didn't happen, is it possible to say what the likely effect on each of the children would be by that not occurring?
A: I guess we're talking about two different scenarios here, aren't we? One where the children are placed in two placements -- the youngest two siblings and the elder two of those four siblings. If they were not to have significant direct contact that would have a negative impact, in my opinion. They would have some protective factor by the fact that they were placed with one other sibling. I agree, your Honour, that if they were completely separate and all four of the youngest children were in separate placements then they don't have that protective factor of being placed with another sibling and therefore it becomes very, very important indeed, in my opinion.
Q: This is the worst case scenario. If one had four separate sets of adoptive placements for the youngest four and for whatever reason adopters may not sign up to direct contact, it becomes more problematic, doesn't it?
A: It does. At that point then indirect contact is very important. I think what's important to understand is that the children have an opportunity to be in a secure environment where they can develop secure attachment but they also have some opportunity to keep hold of their sense of identity with their siblings too. And that's for the long-term because these children are going to be adults at some point also. So it's not just for their childhood but, by doing that throughout their childhood and having that opportunity throughout that childhood, that gives them a continuity throughout their life and their adulthood to have that identity with their siblings. So that becomes an important protective factor for them.
24. Dr I’Anson was asked about the risk that separation may cause emotional harm to one or more of the siblings and about how any identified risk can be managed. She said,
‘68. The key factor in reducing emotional harm to the children is to attempt to minimise their experience of loss. They will have already experienced the loss of their family parental relationships and a reduction/halting of contact will be a further loss, even if this is an appropriate long-term plan for the children. Therefore, minimising the loss of sibling relationships is important, as well as the sibling relationship providing a protective factor for the wellbeing of the children in the long term…
69. It is a balance between maintaining these relationships through joint placement, direct contact or indirect contact and the reality of the availability [of] suitable placements. It is the suitability of the placement in meeting the child’s needs, as noted above, that will provide the greatest agency for emotional development and long-term wellbeing. Therefore, I would recommend that finding suitable placements, which can sensitively meet each individual child’s physical, emotional and safety needs, is given the highest priority. If this can best be achieved through two placements for the younger four siblings, the question of sibling contact can be supported between the placements both directly and indirectly…’
25. It is not only the separation of the children per se that could be distressing for them, it is also the way in which that separation is handled. Dr I’Anson made the point that,
‘71. …The manner in which the information regarding their placements is shared with the children is also important. The avoidance of any information that may be interpreted as negative about one of the children is extremely important, i.e. thinking about the children’s experience of the explanations for the decisions regarding their placement arrangements and making these as positive and simple as possible.’
Child A, in particular, may need support to enable him to cope with the transition of Child B, Child C and Child D (who at present are with him in the same foster placement) into their new placements.
26. As I have noted, if the younger four children were to be placed in four separate placements then the need for direct inter-sibling contact would be even greater. It is, said Dr I’Anson, really important that the adopters understand that direct inter-sibling contact is a protective factor. From a psychological perspective, contact needs to be guaranteed. She said,
‘66. My understanding is that the plan for the four youngest children is for adoption and this is likely to involve more than one adoptive placement. It is preferable that the children are supported in maintaining some direct and indirect contact with one another, in such circumstances. Indeed, it is currently fairly common place, in my experience, for adopters of siblings to support sibling contact throughout their childhood due to the greater understanding of the benefits of sibling contact for adopted children/children in care.
67 …To have no/very limited contact with one another would add to the loss experienced both currently and for the long term, for the children.’
27. Finally, it is appropriate to note Dr I’Anson’s evidence concerning the children’s therapeutic needs and their need for support. .
28. Therapy for Child A is very important. Child A internalises his difficulties; he presents as being fine yet has therapeutic needs that must be addressed. The aim of therapy would be to help him express and understand his own feelings in relation to his present circumstances, his loss of relationships and his experiences whilst living within his birth family. Dr I’Anson recommends that Child A receives weekly therapy for a minimum of six months.
29. Like Child A, Child B and Child C also have therapeutic needs. Dr I’Anson advises that they need play-based psychotherapy moving on to therapeutic life-story work. This is work that can wait until they move into their adoptive placement.
30. Child D has a slightly better attachment style than her older brothers. In Dr I’Anson’s opinion Child D and Child E are likely to settle into an adoptive placement without the need for therapy.
31. Dr I’Anson also advised that post-adoption support for Child B and Child C is very important. It could have a significant impact on the success of their placement. For them, post-adoption support is likely to be needed for at least a year. A shorter period of post-adoption support may be sufficient for Child D and Child E.
32. On behalf of the mother, it was suggested to Dr I’Anson that long-term foster care would be a realistic option for the younger four children. Dr I’Anson disagreed. In her opinion the four younger children need the additional security that adoption brings.
The final care plans
33. The local authority’s final care plans have undergone a process of change. The plans that were before me at the hearing in August 2017 were dated 2ndMay 2017. Those plans were amended on 8thDecember, 3rdJanuary, 2ndFebruary and 1stMarch. It is appropriate to highlight some of the key changes in the development of the final care plans for each child.
34. The local authority’s final care plan for Child A remains largely unchanged from the plan which was before the court at the August hearing. The local authority proposes that Child A be placed in long-term foster care. It is intended that he remain living in his present foster placement where he is settled and making good progress. It is proposed that he should continue to have direct contact with his mother and grandmother, though at a reduced frequency of once a month, and that direct contact between Child A and the younger four children should cease once adoptive placements have been identified for them. Thereafter it is proposed that Child A should have indirect contact with his siblings at Christmas and on their birthdays. Indirect contact is not to include exchange of photographs. The care plan for Child A has been amended to reflect Dr I’Anson’s advice concerning therapy
35. The justification for the local authority’s decision to prioritise direct contact between Child A and his mother and grandmother above contact with his younger siblings is set out in a statement by the allocated social worker, RC. The local authority’s primary concern about direct contact between Child A and his siblings is of risk to the adoptive placements. RC makes the point that contact between a child in a foster placement and his or her adopted siblings is ‘unusual in adoptive placements’. She says that,
‘6. Any journey down this avenue would require a comprehensive and detailed consideration of positives and risk factors. Potential risk factors to be considered are, for example, geographical location, Child A’s current relationship with his mother and grandmother, and any attempts by the birth family to disrupt the placement.’
RC says that the local authority,
‘8. …recommends that Child A continues to have direct contact with his birth mother and maternal grandmother due to his strong attachment, and does not support the cessation of contact with his mother and maternal grandmother unless there were compelling reasons to do so.’
36. Care plan dated 2 May 2017 : In this the first version of the local authority’s final care plan for Child B the local authority proposed to undertake a time-limited (two months) search for a single adoptive placement for Child B and his three younger siblings. If unsuccessful the local authority proposed to search for a single adoptive placement for Child B, Child C and Child D. The plan was silent as to the length of time for which that search should continue or as to the local authority’s proposals for these three children if a single joint placement for them could not be found. That omission was addressed in oral evidence. I was told that the search was to be time-limited to 3 months (the family-finding social worker said it ought to be 6 months) and if unsuccessful then the local authority would seek two adoptive placements, one for Child B and Child C and another for Child D and Child E.
37. The plan made no mention of the possibility of seeking separate placements for each of the four younger children. That was, though, an issue that was canvassed with local authority witnesses at the hearing in August. At §29 of my earlier judgment I noted that,
‘29. Although JG [the family finding social worker] is optimistic about the prospects of being able to find two two-children placements there is a risk that that may not be possible. If that were to be the outcome the question then arises as to whether the local authority would be willing to contemplate looking for four separate placements for Child B, Child C, Child D and Child E. It is clear that neither JG nor the allocated social worker, HE, has contemplated that scenario. JG said four separate placements would only be appropriate if such an outcome was ‘child led’.
38. This plan proposed that Child B should have indirect contact with his parents and with Child A but direct contact with his younger siblings twice a year
39. Care plan dated 8 December 2017 : The local authority now proposed that there should be a joint adoptive placement for Child B and Child C. The plan goes on to provide that:
‘A search will take place for 6 months, however if no joint placement has been identified at the 6 month stage a search will need to commence for an individual placement.’
40. As for contact between the four youngest children the care plan states that the local authoritywill,
‘promote the continuation of contact between thechildren when all of the children have all been placed in their adoptive placements. Theproposal is that this takes place three time per year and will be facilitated by thechildren’s adoptive carers.’
41. This plan holds out the possibility of ongoing contact between Child B and Child A. It states that,
‘The Local Authority will promote contact between Child B and Child A, however, direct contact with Child A and any risk factors would need to be considered such as geographical location, Child A’s relationship with his mother and grandmother and attempts by the birth family to disrupt the placement. Any direct contact would need to be discussed and agreed with the adoptive carer for Child B, however the Local Authority would propose that this takes place 3 times a year. The contact would be activity based and would take place at a mutually agreed location.’
42. Care plan dated 3 January : By the time this plan was prepared the local authority had ruled out any possibility of ongoing direct contact between Child B and Child A. This plan states that,
‘It is not safe or possible for Child A to have direct contact with Child B however there will be two way annual letterbox contact arranged for Child A and the opportunity to exchange birthday cards and Christmas cards will be promoted by the Local Authority.’
43. Care plan dated 1 March 2018 : Like the previous three care plans, this care plan proposes that there should be a search for a joint adoptive placement for Child B and Child C. It is no longer proposed that the search should be time-limited. It is no longer proposed that if a joint placement for Child B and Child C cannot be found there will be a search for two separate placements.
44. The five care plans for Child C mirror the care plans for Child B.
45. The care plan for Child D dated 2ndMay 2017 mirrors the care plans for Child B and Child C of the same date. As I have already noted, during the course of the hearing in August the local authority indicated that if a time limited search for a joint adoptive placement for Child B, Child C and Child D were unsuccessful then the local authority would search for a joint adoptive placement for Child D and Child E.
46. By the time of the local authority’s next final care plan for Child D, dated 8thDecember, the proposal to undertake a time-limited search for a joint placement for Child D and Child E had become the primary plan for Child D. If unsuccessful, that plan (and the next two plans dated 3rdJanuary and 2ndFebruary) proposed that there be a search for an adoptive placement for Child D on her own. The plan to search for a placement for Child D on her own was omitted from her most recent care plan dated 1stMarch.
47. The care plans dated 8thDecember, 3rdJanuary, 2ndFebruary and 1stMarch all propose that once a placement order has been made Child D should move into Child E’s foster placement in preparation for their move into a joint adoptive placement.
48. In the final care plan dated 2ndMay the local authority proposed that there should be a time-limited (two months) search for a joint adoptive placement for the younger four children and that if that search were unsuccessful then Child E should be placed for adoption on his own. During the hearing in August the local authority indicated that if a joint placement could not be found for Child B, Child C and Child D then there should be a search for a joint placement for Child E and Child D. Each of the final four care plans for Child E mirror those for Child D.
49. The guardian gave oral evidence at the hearing in August. He has reflected upon his position in light of the report by Dr I’Anson. His solicitor filed a position statement for the hearing on 2ndJanuary. On 7thMarch his solicitor also filed written submissions.
50. The guardian supports the local authority’s amended final care plan for Child A including the plan to prioritise direct contact between Child A and his mother and grandmother above direct contact with his younger siblings. It is his assessment that Child A’s contact with his mother and grandmother and his contact with his siblings ‘are of like importance to him’. Although it has been observed by both Dr I’Anson and the guardian that Child A does not appear to get much from his contact with his mother it is the guardian’s view ‘that the emotional break from his Mother and Grandmother in favour of contact with his siblings may not be a route he would favour if he had such a choice to make.’ The guardian shares the local authority’s concern about the risks to the adoptive placements if Child A were to have direct post-adoption contact with his siblings.
51. The guardian supports the local authority’s plan to undertake a time-limited search for joint adoptive placements for Child B and Child C and for Child D and Child E. His position statement does not set out his current views as to the possibility of the children being placed in four separate adoptive placements. As I noted at §59 of my earlier judgment, at the time of the earlier hearing the guardian’s view was that there should not be an automatic transition to a search for four separate placements if two joint adoptive placements cannot be found. If the local authority were considering seeking four separate adoptive placements then it is his opinion the matter should be returned to the court for further consideration.
52. The guardian supports the proposals for direct contact between the four adopted siblings. Contrary to his position at the hearing in August he no longer agrees with the local authority that that contact should be left to the discretion of the adopters. In his opinion the court should exercise its powers to make orders for post-placement contact pursuant to the provisions of s.26 of the Adoption and Children Act 2002.
53. In essence, there are three issues for determination. The first concerns the placement options for each child. The second concerns the contact options for Child A. The third concerns the question whether direct post-placement inter-sibling contact should be left to the discretion of the children’s long-term carers or whether it should be underpinned by an order of the court.
54. In the draft judgment circulated in January I came to the following conclusions on those issues:
On the first issue I did not accept the local authority’s plans for the youngest four children. Those plans proposed that if two joint adoptive placements could not be found for Child B and Child C and for Child D and Child E that four separate adoptive placements would be sought. I invited the local authority to reconsider its care plans for those four children.
On the second issue I did not accept the local authority’s plans, which were supported by the guardian, that direct contact between Child A and his mother and grandmother should be prioritised above direct contact between Child A and his four younger siblings. I indicated that in my judgment Child A should have ongoing direct contact with his younger siblings and indirect contact with his mother and grandmother.
On the third issue the local authority’s plans for the younger four children proposed that following placement the prospective adopters should be encouraged to support and promote ongoing direct post-placement contact between these four siblings but that that contact should not be underpinned by orders made under s.26 of the Adoption and Children Act 2002. The guardian disagreed. I indicated that in my judgment direct post-placement contact between these four children should be underpinned by an order of the court.
55. I invited the local authority to reconsider its care plans for all five children.
The local authority’s response to the draft judgment
56. The local authority’s initial response to the court’s invitation is to be found in written submissions of counsel, Mr Gordon Semple, dated 7thFebruary. The local authority declined the invitation to reconsider its care plans. Mr Semple said that,
‘The Local Authority notes that the Court has refused to approve the care plans in respect of the younger four children and directed that the Local Authority file amended care plans. The Local Authority understands this to be an invitation to reconsider its care plans. The Local Authority has considered its care plans and for the legal and welfare reasons set out below does not propose to substantively alter the same, the position of the Local Authority will necessarily be reviewed in light of the Court’s response to the matters set out below.’
57. With respect to the conclusions I had arrived at in respect of the three issues for determination, the local authority’s position was as follows:
The first issue : With respect to the first issue, the possibility of four separate adoptive placements for the younger four children, Mr Semple said:
‘7. It is understood that the amendments sought by the Court to the Local Authority care plans are intended to exclude the possibility of the separate placements being sought for the children at any stage after the making of placement orders. The Court of Appeal decision in Re A  EWCA Civ 1611 is binding on this Court and it impermissible for the Court to seek to place conditions upon a placement order…
9. Given the clear findings of the Court that adoption is the necessary order for the four youngest children…it is wrong in law for the Court to refuse to endorse a care plan for adoption simply to require that the Local Authority amends its care plan to unlawfully add conditions to the placement order.
10. Whilst, as set out above, it is submitted that the restriction sought by the Court on single placements is wrong in law, it is also inconsistent with…the oral evidence of the jointly instructed expert which expressly confirms that the children could “ achieve a significant level of emotional development and well being ” in circumstances where appropriate individual placements were identified.’
The second issue : With respect to the second issue, prioritising direct contact between Child A and his younger siblings above his contact with his mother and grandmother, Mr Semple said:
‘11. The Local Authority respectfully submits that the Court’s conclusions on this issue were wrong for the following reasons:
a. The decision of the judgment runs contrary to the consensus of professional opinion (including the views of Dr I’Anson expressed in oral evidence).
b. The Court has failed to consider the oral evidence of Dr I’Anson (see page 14)
c. The Court has failed to properly consider the wishes and feelings of Child A
d. The Court has failed to address the views of the other parties.’
The third issue : whether it is appropriate to make orders for direct post-placement contact between the younger four children. Mr Semple’s submissions do not address this issue.
58. Notwithstanding that initial response, as I have already noted, the local authority filed amended final care plans dated 1stMarch. Those final care plans need to be read alongside the additional statements of the social worker and Child A’s local authority appointed advocate (see §10 above) and Mr Semple’s further written submissions.
The first issue
59. The starting point for Mr Semple’s submissions is that, with respect to the final care plans for the younger four children the local authority now accepts the conclusions arrived at by the court in the draft judgment. He says,
‘8. The Court now has the amended care plans dated 1st March 2018. Those plans reflect the Local Authority plan, endorsed by the Court in the draft judgment, and reflect the expert and professional evidence of Dr I’Anson.’
60. Had Mr Semple’s submissions ended there, it would have been reasonable to assume that the local authority now accepts that four separate adoptive placements would not be appropriate for these four children. However, his submissions do not end there. Mr Semple goes on to say that,
‘12. The Court of Appeal decision in Re A is binding on this Court and it [is] impermissible for the Court to seek to place conditions upon a placement order, it [is] not therefore possible for the Court to seek to prohibit any future amendment to the plan and it is neither necessary or appropriate to do so. Any future changes to the plan would require full reconsideration of the plans including consideration of whether adoption remains in the best interests of each of the children. That function is a function delegated to the Local Authority by statute and it would be wholly inappropriate, and indeed unlawful, for the Court to seek to retain a supervisory function (see §§29 and 30 Re A). The obligations for review and the scope of the review of the plans for children subject to placement orders are prescribed and tightly regulated by the regulations (see in particular reg 36 of the Adoption Agency Regulations (SI 2005/389))…
15. For the avoidance of doubt it is respectfully submitted that any suggestion that the Court should adjourn the placement applications until placements have been identified solely to give the Court continued supervision of the matching process and/or to ensure continued representation of the parents and children would be an abuse of process. It is submitted that the obiter comments of McFarlane LJ at §43 of Re A should not be seen as creating some form of alternative route for searching for adoptive placements and should be seen within the very particular circumstances of that case.
16. Once the Court is satisfied that the children require adoption and that the Local
Authority plan is the correct one the Court should make the placement orders and in so doing engage the statutory mechanism for the Local Authority to implement the plans which are in the children’s welfare interests. Any suggestion that an application for a placement order should only be considered once placement is identified is inconsistent with the statutory scheme and would not only make the process of search more difficult (as acknowledged at §43 of Re A) but also serve to cause delay and uncertainty for the children. Such a step cannot be in the children’s best interests.
17. Whilst the Local Authority plan is clear, and could and would not be amended without full consideration in accordance with the statutory scheme, it is submitted that any attempt by the Court to restrict future changes to the care plan would not only be unlawful but would also run contrary to the clear evidence of the jointly instructed expert…’
61. The impression thereby created is that although the amended final care plans no longer propose that there should be a search for four separate adoptive placements if two joint adoptive placements cannot be found within six months, the local authority may still decide to search for individual placements. It was because of my concern about that issue that I ordered a further statement from the social worker. In that statement, the social worker says,
‘4. The Local Authority can confirm that the search for two adoptive placements (one for Child B and Child C and the other for Child D and Child E) will not be time limited. The adoption finder is confident that these placements are achievable in a reasonable timescale. This is in line with the children’s care plans and there is no alternative plan to seek alternative groupings.
5. The Local Authority does not seek to look for four separate adoptive placements for the children. If a Placement Order is made than (sic) there will remain a statutory duty to review the children’s plans to ensure they continue to meet the children’s welfare needs.’
62. I do not need to refer to the detail of the submissions made on behalf of the other parties. The parents and the grandmother do not support the making of adoption orders. If adoption orders are made neither they nor the children’s guardian support the placement of the children in four separate placements.
The second issue
63. With respect to the second issue, Mr Semple sets out the local authority’s position as follows:
‘19. The Local Authority notes the position of Dr I’Anson in her response to the request for clarification. The Local Authority respectfully submits that there is a consensus of the professional evidence that the contact between Child A and the adults should be given preference to that as between Child A and his siblings.
20. The Local Authority agrees with the observations [in the draft judgment] that there is a ‘straight choice to be made’ between direct contact with siblings or the adults.
21. There is consensus between respondent parents and grandmother that such contact should be preferred.
22. Finally, the local authority notes the letter sent to the Court by Child A. The letter was clearly unsolicited but does demonstrate that Child A has a clear understanding of his present position. The Local Authority are unable to assist further at this time regarding the circumstances in which the letter was written but can confirm that it accords with his previously stated wishes and feelings.
23. For the reasons set out above the Court is invited to amend the draft judgment to reflect the unanimity of professional opinion and the wishes and feelings of the respondent adults and Child A that direct contact with the adults should be preferred.’
The third issue
64. With respect to the third issue, the local authority no longer opposes the making of orders for contact. In his submissions, Mr Semple says,
‘24. As set out at the hearing of 8th February 2018, the Local Authority does not seek tochallenge the conclusions of the Court in respect of Section 26 of the Adoption andChildren Act 2002 and accepts that the Court will make contact orders in respect of thesibling contact.’
The court’s approach
65. The underlying approach the court must take when determining these three issues can be stated shortly.
66. The parents agree that the threshold set by s.31(2) of the Children Act 1989 is met. That opens the gateway to the making of orders. With respect to all five children the local authority seeks final care orders. The approach the court must take in determining those applications is set out in s.1 of the Children Act 1989. Section 1(1) provides that in determining what, if any orders, are appropriate the welfare of each child must be the court’s paramount consideration. In determining what is in their best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(2) requires the court to have regard to the general principle that any delay in determining the local authority’s applications is likely to prejudice the children’s welfare. Section 1(5) requires that the court should not make any order with respect to a child unless satisfied that making an order would be better for that child than not making an order.
67. With respect to the applications for placement orders for the younger four children the approach is set out in s.1 of the Adoption and Children Act 2002. Section 1(2) requires that when the court is coming to a decision relating to the adoption of a child the court’s paramount consideration must be the child’s welfare throughout his life. In coming to a decision the court must have regard to each of the factors set out in the welfare checklist in s.1(4). Sub-sections 1(3) and 1(6) largely mirror the provision of sections 1(2) and 1(5) of the 1989 Act.
68. In determining whether to make care orders for all five children and placement orders for the younger four, the court must also take account of the Article 8 rights of both parents and of all five children. In this case, given that the grandmother was the sole carer for these children for a period of some three months and continues to have contact with them, in my judgment the court must have regard to her Article 8 rights too.
69. In the judgment handed down in August 2017 I undertook a welfare checklist analysis. I have that analysis in mind. It is unnecessary to repeat it, though clearly some aspects require updating in light of the evidence from Dr I’Anson.
70. Child A is happy and settled in his present foster placement. Given his age, long-term foster care is the only realistic option for him. His foster carers are willing to provide him with a long-term home. This placement is meeting Child A’s needs. He is happy and settled. As this is an agency foster placement the local authority must pay for the placement. The local authority has indicated that it is willing to do so on a long-term basis. I am in no doubt that this is the best placement outcome for Child A.
71. Dr I’Anson has identified Child A’s therapeutic needs. Her evidence on that issue was not challenged. The local authority agrees to arrange for Child A to have the therapy he needs. The final care plan for Child A has been amended accordingly.
72. So far as concerns the younger four children the only realistic options are long-term foster care and adoption. The parents and grandmother both seek to persuade the court that long-term foster care is the right outcome for them. Not only would long-term foster care enable the four younger children to have ongoing contact with their parents and grandmother it would also, it is submitted, better enable them to have ongoing direct contact with one another. It would avoid the risk of the children experiencing the sense of loss at being separated from one another which they are likely to experience if placed for adoption.
73. There is no professional support for the position taken by the parents and grandmother. The allocated social worker and the guardian are both of the very clear view that long-term foster care for the four younger children is not appropriate and that it is in their best interests for them to be placed for adoption. That is also Dr I’Anson’s view. Mr Finch, for the father, asked Dr I’Anson whether long-term foster care may be an appropriate outcome for this sibling group. She said,
‘I think, given the four youngest children’s age in terms of their psychological wellbeing, that’s best achieved through high level of permanence and security, so, in my experience, that’s best achieved through adoption.’
So far as the professional witnesses are concerned, for these four children nothing short of adoption will do.
74. Separating siblings is not a step that is ever taken lightly by the court. Separation of siblings may make the local authority’s task of identifying suitable placements somewhat easier but the starting point, as Dr I’Anson rightly emphasises, is that ‘Generally, siblings being placed together, if at all possible, is preferable’. I am in complete agreement with Dr I’Anson on that general approach.
75. However, every case is different. Every family is different. In any particular case there may be factors that make the objective of keeping a sibling group together unrealistic or inappropriate. These factors may include, for example, the size of the sibling group, the wide age range of the sibling group, the ethnic diversity of the sibling group, the fact that children in the sibling group have different fathers, the special needs of a child who is part of the sibling group or a professional assessment that it is in the welfare interests of the children concerned that they should be separated. These are illustrations. The list is not intended to be exhaustive. The court must focus on the needs and welfare of the individual children whose future it is determining.
76. In this case Child B, Child C, Child D and Child E are aged 4, 3, 2 and almost 1 respectively. Child A is now aged 11. The gap in age between Child A and the younger sibling group is significant. By the time the care order for Child A expires at age 18, Child B (the next oldest child) will only just be at the point of moving up to secondary school. Whilst long-term foster care is an appropriate outcome for an eleven-year old child, it would not usually be considered appropriate for a group of children all aged under 5. For very young children long-term foster care invariably has the disadvantages and adoption the advantages described at §123 of my earlier judgment. I am satisfied that that is so in this case.
77. In Re B-S (Children)  EWCA Civ 1146 the Court of Appeal underlined the fact that adoption should only be ordered as a last resort, where nothing else will do, where no other course is possible in the child’s interests. In this case I have come to the conclusion that so far as concerns the younger four children it is the case that nothing but adoption will do if appropriate adoptive placements can be found.
78. I accept that it would be unrealistic to look for a single adoptive placement for all four children. Whilst such placements do exist, in my experience they are rare. It is more likely than not that the search for such a placement would cause delay in settling the futures of these four children. These proceedings have already been ongoing for more than a year. I am in no doubt that it is very important to try to avoid any further delay.
79. The local authority proposes to search for two placements, one for Child B and Child C and one for Child D and Child E. That approach is supported by Dr I’Anson. It is also supported by the guardian. Whilst I accept that separating these sibling into two groups is not ideal, I am satisfied that in the particular circumstances of these four children the proposed separation is an appropriate and proportionate outcome.
80. Dr I’Anson has been clear that the priority for each of these four children is to identify high quality placements with carers who are able to meet their individual needs. In this context high quality means placements in which the carers are emotionally and physically available to the children and in which the children’s attachment needs are met. All other factors to be taken into account are secondary to that primary objective. If the choice were to be between four separate high quality placements and two joint placements that could not meet the children’s needs quite so well then four separate placements would be preferable. Whether that choice will arise in this case will not become clear until the search for potential adoptive placements is underway. That search has not yet begun.
81. Although the need for high quality placements is an overriding need, there are other protective factors that are important and which should be weighed in the balance. The separation of siblings can have negative consequences. In contrast, being placed with another sibling is a protective factor. Where separation occurs, maintaining contact, both direct and indirect contact, with other siblings is another protective factor. Dr I’Anson made it clear that for these four children establishing and maintaining inter-sibling contact would be particularly important if the children were to be placed in four separate adoptive placements. Therapy is another protective factor.
82. Talk of ‘protective factors’ is a reminder that the experience of loss and grief which will likely follow the separation of these siblings may cause them emotional harm. The significance of protective factors is that they protect against (reduce) the risk and the impact of emotional harm.
83. In each of the three care plans dated 8thDecember, 3rdJanuary and 2ndFebruary the local authority proposed that the search for two adoptive placements be time-limited to six months and if unsuccessful the search should be widened to include a search for separate placements for each child. In the most recent final care plans dated 1stMarch the local authority makes no reference to the search for two placements being time-limited or to the possibility of the search being widened to include a search for four separate placements. The latest social worker statement says in terms that the search for two joint adoptive placements will not be time-limited and that there is no plan to look for four separate placements.
84. However, both Mr Semple in his written submissions dated 7thMarch and the social worker in her further statement dated 12thMarch draw attention to the statutory duty upon the local authority to keep the children’s plans under review to ensure that they continue to meet the children’s needs. That raises the possibility that although the local authority now has no present intention to widen the search to include a search for four separate adoptive placements circumstances may require the local authority to reconsider its plans in the future. Should the court be concerned about that possibility? If it should, what should it do? In posing those questions I have in mind the fact that in this case the decision whether these children should be placed in two joint adoptive placements or in four separate placements is a very important welfare issue for them. I am concerned that although the care plans have been amended to address the court’s concerns, that does not necessarily mean that the local authority can be relied upon not to change its plans at a later date to include a search for separate adoptive placements.
What are the court’s powers?
85. Section 31A of the Children Act 1989 places a duty upon a local authority to prepare a care plan. So far as is relevant, that section provides that:
(1) Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct , prepare a plan (“a care plan”) for the future care of the child.
(2) While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.
86. Section 31 sets out the extent to which the court is required to consider the care plan when deciding whether to make a care order. So far as is relevant, it provides that:
(3A) A court deciding whether to make a care order—
(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but
(b) is not required to consider the remainder of the section 31A plan, subject to section 34(11).
(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are—
(a) such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following—
(i) the child to live with any parent of the child's or with any other member of, or any friend of, the child's family;
(iii) long-term care not within sub-paragraph (i) or (ii);
(b) such of the plan's provisions as set out any of the following—
(i) the impact on the child concerned of any harm that he or she suffered or was likely to suffer;
(ii) the current and future needs of the child (including needs arising out of that impact);
(iii) the way in which the long-term plan for the upbringing of the child would meet those current and future needs.
87. It is settled law that the court has no power to attach conditions or directions to a care order.In Re S (Minors)(Care Order: Implementation of Care Plan), Re W (Minors: Care Order: Adequacy of Care Plan)  UKHL 10 the position was made plain. Lord Nicholls said that the basic principle is that,
‘25. …The Act delineated the boundary of responsibility with complete clarity. Where a care order is made the responsibility for the child's care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority's discharge of its responsibilities. That was the intention of Parliament.
26. Consistently with this, in Kent County Council v C  Fam 57 Ewbank J decided that the court has no power to add to a care order a direction to the authority that the child's guardian ad litem should be allowed to have a continuing involvement, with a view to his applying to the court in due course if thought appropriate. In In re T (A Minor)(Care Order: Conditions)  2 FLR 423 the Court of Appeal rightly approved this decision and held that the court has no power to impose conditions in a care order. There the condition sought by the child's guardian was that the child should reside at home.’
88. If the court has no power to attach conditions or directions when making a care order what, then, is the court to do if it does not consider the care plan to be appropriate? In Re J (Minors)(Care: Care Plan)  1 FLR 253 at page 258, Wall J (as he then was) made the point that in those circumstances ‘the court may refuse to make a care order’. The point was restated by the Court of Appeal in Re W (Care Proceedings: Function of Court and Local Authority)  EWCA Civ 1277,  2 FLR 431. Ryder LJ said (§84)that ‘If the local authority's care plan fails to meet the court's expectations, the court may ask the local authority to reconsider.’
89. The local authority’s change of position in its latest care plans would seem to suggest that, notwithstanding Mr Semple’s description of the approach to the final care plans set out in my draft judgment as ‘wrong in law’, it is now accepted that that was the approach the court was required to take if, as was the case, the court did not consider the care plans for these four children to be appropriate. The care plans have now been amended to reflect the court’s concerns.
90. In Re S-C (Children)  EWCA Civ 1800 the court declined the invitation to give guidance on the approach to be taken when determining the configuration of the placement of children who are part of a sibling group. Baron J said that,
‘5. The grounds of appeal also contemplate that this court should lay down general principles in relation to the way that sibling groups should be dealt with in the context of care proceedings. Speaking for myself, I would decline to make any pronouncements of a general nature because each case is unique and different on its facts. The court will always be required to provide bespoke solutions targeted on the needs of each particular child. Accordingly general guidance in this field would not be in point. ’
91. In my judgment, the understandable unwillingness to give general guidance on this issue – because the court is required to provide bespoke solutions targeted at the needs of each particular child – does not amount to an indication that the court has no power to provide a bespoke solution for a particular sibling group. On the contrary, that passage suggests that the court does indeed have that power. If that is correct then, in my judgment, it follows that in this case, had the local authority not abandoned the contingency plan of undertaking a search for four separate adoptive placements, it would have remained open to the court to decline to make final care orders for the younger four children and to invite the local authority to reconsider.
92. The local authority having amended its final care plans, the focus of attention now switches to the application for placement orders for these four children. Does the court have the power to attach conditions to a placement order? That is a point that was considered by the Court of Appeal in Re A (Placement Order: Imposition of Conditions on Adoption)  EWCA Civ 1611. The Court of Appeal made it clear that just as the court has no power to attach conditions or directions when granting a care order so, too, it has no power to attach conditions or directions when granting a placement order. McFarlane LJ said that,
‘30. In the absence of any express statutory provision to the contrary, Parliament must be taken to have intended that the 'cardinal principle' identified in Re: S; Re: W would apply to the making of a placement for adoption order. The wording of the key provision in ACA 2002, s 21(1) could not be more plain:
'A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority ' [emphasis added].
The fact that in almost all cases the court will be making a final care order under CA 1989, s 31 at the same time as making a placement for adoption order, and there is plainly no power to add conditions to a care order, only goes to underline the position.’
93. What, then, is a judge to do if she comes to the conclusion that a child’s welfare only requires adoption if an adoptive placement can be found which meets a number of specific attributes but, if those attributes are not present, the child’s welfare will not be best served by adoption? McFarlane said that,
‘38. The answer to the question is, in my view, plain and straightforward. It is to be found in ACA 2002, s 52(1):
'The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption … unless the court is satisfied that … the welfare of the child requires the consent to be dispensed with.' [emphasis added]
39. The judgment of Wall LJ in Re P (Placement Orders: Parental Consent)  EWCA Civ 535 ; 2 FLR 625 set out in clear terms how the word 'requires' in s 52(1) is to be applied. The passage in Re P is well known and there is no need to repeat it here. The question, after applying the life-long focus of the welfare provisions in ACA 2002, s 1, is whether what is 'required' is adoption, as opposed to something short of adoption. The interpretation of s 52 in Re P was expressly endorsed by the Supreme Court in Re B (A Child)  UKSC 33 and given general application in the judgments of the court where the need for a proportionate justification for adoption was underlined by the use of phrases such as "nothing else will do", "a very extreme thing" and "a last resort".
40. As I have already held, it was not open to the court to seek to limit or exert direct influence over the choice of prospective adopters under a placement for adoption order. On that basis and on the express findings of the judge it was simply not open to the court in the present case to go on to conclude that the welfare of either of these two boys required adoption as opposed to something short of adoption; it was not possible to hold that 'nothing else will do'. The judge was expressly contemplating that long-term fostering would 'do' and, indeed, would only be displaced as the better option for the boys if a 'shopping list' compliant adoptive home could be found.In the absence of a power to influence and control the local authority's role under a placement for adoption order, the test in ACA 2002, s 52(1), in so far as it relates to a placement order, must be read in the light of s.21(1) with the welfare requirement being evaluated on the basis that the placement is to be 'with any prospective adopters who may be chosen by the authority'.
41. A court may only make a placement for adoption order if, under ACA 2002, s 21(3), it is satisfied either that each parent or guardian is consenting, or that the parent or guardian's consent to the child being placed for adoption should be dispensed with under the terms of ACA 2002, s 1 and s 52. Against the test in ACA 2002, s 52(1) and on the findings of the judge, the ground for dispensing with parental consent in this case was simply not established and as a result the court did not have jurisdiction to make placement for adoption orders. ’
94. McFarlane LJ acknowledged that the solution he proposed could make the local authority’s task more difficult though he did not consider this would create an insurmountable problem. He said,
‘43. The absence of placement for adoption orders will no doubt render more difficult the task of finding prospective adopters for these two children, but the local authority remain able, under the care order, to continue to search for adopters.
44. If prospective adopters are identified, then it will be open to the local authority to make a fresh application to the court for an order authorising placement for adoption under ACA 2002, s 21. In determining that application the court will then be in a position of matching the welfare requirements of the boys, as they are then seen to be, against the attributes of the identified adopters. In the unusual circumstances of this case, where only a bespoke adoptive placement is currently seen to be in the children's interests, such a procedure would seem not only to be legally required, but also to be appropriate.’
95. It is submitted on behalf of the local authority that it would not be appropriate to follow that approach in this case. In support of this submission Mr Semple draws the court’s attention to the Adoption Agencies Regulations 2005. He makes the point that the obligations for review and the scope of the review of the plans for children subject to placement orders are ‘prescribed and tightly regulated’ by the 2005 regulation. He points in particular to regulation 36 which, so far as is relevant, provides that:
(1) Where an adoption agency is authorised to place a child for adoption but the child is not for the time being placed for adoption the agency must carry out a review of the child’s case—
(a) not more than 3 months after the date on which the agency first has authority to place; and
(b) thereafter not more than 6 months after the date of the previous review (“6 months review”),
until the child is placed for adoption…
(5) When carrying out a review the adoption agency must consider each of the matters set out in paragraph (6) and must, so far as is reasonably practicable, ascertain the views of—
(a) the child, having regard to his age and understanding;
(b) if the child is placed for adoption, the prospective adopter; and
(c) any other person the agency considers relevant,
in relation to such of the matters set out in paragraph (6) as the agency considers appropriate.
(6) The matters referred to in paragraph (5) are—
(a) whether the adoption agency remains satisfied that the child should be placed for adoption;
(b) the child’s needs, welfare and development, and whether any changes need to be made to meet his needs or assist his development;
(c) the existing arrangements for contact, and whether they should continue or be altered;
(d) where the child is placed for adoption, the arrangements in relation to the exercise of parental responsibility for the child, and whether they should continue or be altered;
(e) the arrangements for the provision of adoption support services for the adoptive family and whether there should be any re-assessment of the need for those services;
(f) in consultation with the appropriate agencies, the arrangements for assessing and meeting the child’s health care and educational needs;
(g) subject to paragraphs (1) and (3), the frequency of the reviews.
(7) Where the child is subject to a placement order and has not been placed for adoption at the time of the first 6 months review, the local authority must at that review—
(a) establish why the child has not been placed for adoption and consider what further steps the authority should take in relation to the placement of the child for adoption; and
(b) consider whether it remains satisfied that the child should be placed for adoption.
(8) The adoption agency must, so far as is reasonably practicable, notify—
(a) the child, where the agency considers he is of sufficient age and understanding;
(b) the prospective adopter; and
(c) any other person whom the agency considers relevant,
of the outcome of a review and of any decision taken by the agency in consequence of that review.
(9) The adoption agency must ensure that—
(a) the information obtained in the course of a review or visit in respect of a child’s case including the views expressed by the child
(b) the details of the proceedings of any meeting arranged by the agency to consider any aspect of the review of the case; and
(c) details of any decision made in the course of or as a result of the review,
are recorded in writing and placed on the child’s case record.
96. I accept that the plan to place these children for adoption is a plan which the local authority is required to keep under review. The statutory scheme makes it clear that the court has no role to play in that process of review. Subject to the powers of the High Court in judicial review, the process of review is the sole preserve of the local authority. As s.21(1) of the Adoption and Children Act makes clear, once a placement order has been made the child may be placed ‘with any prospective adopters who may be chosen by the authority’. The local authority has an unfettered discretion to determine choice of placement. In a case involving a sibling group, in my judgment that must mean that the local authority also has an unfettered discretion to determine whether siblings should be placed together or separately.
97. The regulations require the local authority to ‘ascertain the views of’’ the child and ‘any other person whom the agency considers relevant’ and to ‘notify’ the child and ‘any other person whom the agency considers relevant’ of the outcome of the review. So far as the subject child is concerned, these duties arise only where the local authority ‘considers he is of sufficient age and understanding’. In my judgment, in this case, given the ages of the relevant children (4, 3, 2 and 1) these duties do not arise.
98. Whether the duties which arise are owed to parents is a moot point. Regulation 36 does not refer to parents. The duties which arise under regulation 36 are owed to ‘any other person whom agency considers relevant’. In my judgment, these parents come within the ambit of the description ‘any other person whom the agency considers relevant’. However, I have heard no submissions on that point and my views are, therefore, necessarily provisional.
99. If, as a result of complying with its duty to keep the plans under review, the local authority were to conclude that the search for adoptive placements should be widened to include a search for four separate placements, there are a number of options open to an aggrieved parent or child. The decision could be challenged by seeking a judicial review. If the child has not been placed for adoption,he or she has the right to apply for the placement order to be revoked (s.24(1) and (2) of the Adoption and Children Act 2002). A parent has the right to apply to the court for leave to apply to revoke the placement order (s.24(2)). Even after the child has been placed, s.47(5) gives the court power to grant leave to a parent to oppose an application for an adoption order.
How should the court’s powers be exercised in this case?
100. I understand the parents’ dismay at the prospect of the four younger children being placed for adoption separately. The local authority’s earlier proposal to look for four separate placements if two joint placements could not be found within six months, set out in the care plans dated 8thDecember, 3rdJanuary and 2ndFebruary, had all the appearance of prioritising pragmatism – maximising the prospects of finding adoptive placements for each child – above the needs of sibling relationships and the importance of minimising the children’s sense of loss. The possibility of these five children finding themselves in five different placements is, in my judgment, an outcome which, absent compelling justification, should not be countenanced.
101. In arriving at that conclusion I have in mind the requirements of s.1 of the Adoption and Children Act 2002. I have noted that the children’s sense of loss and grief at being separated from each other has the potential to cause them emotional harm. Section 1(4)(e) requires the court to have regard to any harm which these children are at risk of suffering. I have noted that ongoing contact between the four younger children is a protective factor. Section 1(4)(f)(i) requires me to consider the relationship these children have with each other, the likelihood of that relationship continuing and the value to these children of it doing so.
102. That raises a novel issue. Where the court accepts that adoption is the appropriate outcome for a sibling group – that nothing else will do – does the court have any power to limit the local authority’s discretion to determine the configuration of the adoptive placements?
103. The amended final care plans dated 1stMarch provide that there should be a search for two adoptive placements, one for Child B and Child C and one for Child D and Child E, It makes no proposal to search for four separate adoptive placements. To that extent the care plans have been amended to reflect the concerns set out in the draft judgment circulated in January. So far as concerns the permanence plans for the younger four children, I am satisfied that those plans should now be approved and final care orders made with respect to those children.
104. However, that still leaves outstanding my concern about the possibility that once placement orders are made the local authority may yet decide that if two joint adoptive placements have not been identified within a reasonable period of time the search should be widened to include a search for four separate placements. I accept that if I make placement orders today then notwithstanding the final care plans which I have approved, regulation 36 of the Adoption Agency Regulations 2005 requires the local authority to keep those plans under review and entitles the local authority to change those plans if it considers that the children’s welfare requires it to do so. The local authority would not require the prior approval of the court. That is a concern.
105. The court is faced with two alternatives. Either the court may make the placement orders sought by the local authority and, as Parliament has done, place its trust in the local authority to make the right placement decisions for these children or, alternatively,the court may decline to make the placement orders and requires the local authority to return to court once placements have been identified.
106. The first alternative has the advantage that it brings an end to the litigation. It would enable the local authority to progress its care plans without delay. However, it leaves open the possibility that at some point in the future the local authority may come to the decision that the difficulties in identifying two adoptive placements are such that the search should be widened to include a search for four separate placements. If that were to happen the parents would have to consider pursuing an application to the court to prevent that from happening.
107. I have identified the steps that could be considered – an application for judicial review, an application to revoke the placement orders or an application for leave to oppose a future adoption application. All of those options have in common one very serious drawback. In pursuing any of those options the parents would require the permission of the court (see, respectively, Civil Procedure Rules 1998 rule 54.4, Adoption and Children Act 2002 s.24(2)(a) and s.47(5)). So far as concerns applications under leave under s.24(2)(a) or s.47(7), before leave could be granted the applicant would have to satisfy the court that there has been a change in circumstances since the placement orders were made. It is a moot point whether a local authority’s decision to change the configuration of the placement options would amount to a change of circumstances for those purposes.
108. Furthermore, it would be immensely difficult for the parents to pursue any of those options as litigants in person. Unlike the position in care proceedings where parents are entitled to non-means and non-merits tested legal aid, an application for legal aid to pursue any of the other options I have identified would be means and merits tested. That could be said to mean that, in reality, the decision about whether one of those options could be effectively pursued would be a matter for the Legal Aid Agency rather than the court.
109. I have considered carefully whether it is appropriate for me to follow in this case the approach taken by the Court of Appeal in Re A (Placement Order: Imposition of Conditions on Adoption)  EWCA Civ 1611. However, the facts of that case were very different. In that case the first instance judge concluded that long-term foster care was the appropriate outcome unless an adoptive placement could be found that met all of the criteria identified by the trial judge as being necessary. In this case I am satisfied that, unless it should be the case that adoptive placements cannot be found, long-term foster care would not be appropriate for these children. Nothing but adoption will do.
110. The court may only make placement orders if either both parents consent to the making of those orders or the court dispenses with parental consent. In this case neither parent consents to the making of placement orders. Section 52(1) of the Adoption and Children Act 2002 gives the court power to dispense with parental consent if the court is satisfied that ‘the welfare of the child requires the consent to be dispensed with’. In this case, in light of the facts and matters set out in this judgment, I am satisfied that the welfare of these four children does require that the parents’ consent be dispensed with.I shall make the placement orders sought by the local authority.
Independent Reviewing Officer
111. Notwithstanding my decision to make placement orders, I remain profoundly concerned about the possibility that the local authority may at some future point decide to change the care plans for these children to seek separate adoptive placements for each of them. If I had the power to order that that could not happen without the approval of the court I would unhesitatingly make that order. I do not believe I have that power.
113. In this case it is very important that there is an effective handover from the Children’s Guardian to the IRO and that the IRO is provided with a copy of this judgment. It is important that the court’s concerns about a future change in plan to four separate placements are emphasised and understood. It is important that the IRO understands the court’s provisional view that in any review of the care plans the views of the parents should be ascertained and taken into account in the review process and that the parents should be notified promptly of the outcome of any review.
114. Regulation 37(1) requires the IRO ‘to carry out the functions mentioned in section 26(2A) of the 1989 Act’. Section 26(2A) of the 1989 Act is now omitted as a result of the provisions of s.10 of the Children and Young Persons Act 2008. The functions that were to be found in s.26(2A) are now to be found in sections 25A, 25B and 25C of the 1989 Act (those sections having been inserted pursuant to the provisions of s.10 of the 2008 Act). It is unnecessary for me to set out these new sections in full. However, it is appropriate to highlight the requirements of s.25B(3) of the 1989 Act which provide that:
‘If the independent reviewing officer considers it appropriate to do so, the child’s case may be referred by the officer to –
(a) An officer of the Children and Family Court Advisory and Support Service…’
115. Although regulation 37(1) of the 2005 regulations has not been amended and updated in light of the provisions of s.10 of the Children and Young Persons Act 2008, in my judgment it is open to an IRO appointed under regulation 37(1) to make a referral to Cafcass if it considers such a referral to be appropriate. In my judgment, in this case a decision made following a review under regulation 36 to change the care plans for these four children to permit a search for separate adoptive placements for each of them is an issue that ought to lead to the IRO making a referral to Cafcass.
Contact issues – Child A
116. Child A is to remain in long-term foster care with his present foster carers. There is an issue about his future contact with his birth family. The local authority seeks to persuade me that his welfare requires that he should continue to have ongoing direct contact with his mother and grandmother, that contact to take place monthly, and that he should have only indirect contact with his four younger siblings. The guardian supports that position. Until receipt of her response to written questions it appeared that Dr I’Anson took a different approach. In her main report she said that she ‘would be concerned if Child A were to lose his direct contact with his siblings, in order to prioritise contact with his mother and grandmother’.
117. The first issue to determine is whether this really is an either/or situation. Is it possible for Child A to have ongoing direct contact with both his mother and grandmother and also with his siblings? On this issue the local authority, the guardian and Dr I’Anson are in agreement. If it were known to Child A’s mother and grandmother that he was having contact with his siblings as well as with them then there is a significant risk that they would put him under pressure to divulge information concerning his siblings and their placements. That, in turn, could destabilise those placements. I accept that that is a real concern and for that reason I accept that it would not be appropriate for Child A to have ongoing direct contact with both his mother and grandmother and with his siblings.
118. The issue of Child A’s ongoing contact with his birth family is a welfare issue. In determining that issue the welfare checklist set out in s.1(3) of the Children Act 1989 is the appropriate place to begin. The following factors in the welfare checklist are, in my judgment, of particular relevance.
119. Section 1(3)(a) requires the court to consider Child A’s ascertainable wishes and feelings (considered in the light of his age and understanding).
120. I have already noted that it is accepted by both Dr I’Anson and the guardian that if Child A were given the choice it is likely he would choose to continue to have contact with his mother and birth mother than with his younger siblings once they have been placed for adoption. If there were any doubt about that issue then that doubt appears to have been dispelled by the letter Child A wrote to me on 20thFebruary. He was assisted in writing that letter by PW, an independent advocate from the Derbyshire Advocacy Service. So far as is relevant, the letter reads:
‘I have asked my independent Advocate to help me to write this letter to you as I struggle with my writing. Everything I have to say in this letter are my own words…
I live with my brothers and sister and I know they are to be adopted. I want to see them settled with a new family that loves them but I would like you to make that decision as quickly as possible as I find it very upsetting not knowing when it is going to happen and this has been going on for a long time. It makes me very sad and worried.
I am told that the question of contact with my brothers and sister and also with my parents are delaying your decision so I am writing to tell you what I would like to happen.
I would like contact with my sister and brothers to be letterbox twice a year. I would like an update and a photo so I know they are ok. I want to see my mum and nan around eight times a year….’
In determining the weight to be attached to that letter I am assisted by the recently filed written statement by the advocate, PW.
121. PW received an advocacy referral form dated 30thJanuary. The form was completed by Child A’s current social worker, DP. The referral form sets out the reasons for the referral in these terms:
‘Child A and his foster carers feel that he would benefit from an advocate as Child A feels as though his voice [is] lost in the care planning process and he is frustrated that the process is taking so long and cant (sic) get the answers he is looking for. He feels that having someone who can project his voice in the care planning process would be good. He often feels unable to speak in large meetings.’
122. In her statement, the advocate says that,
‘3. Child A raised the issue of contact when I saw him to obtain his wishes and feelings. He specifically asked that contact with his mum and nan continue as he is especially fond of his nan.’
123. It is clear that this is not the only issue troubling Child A. The advocate appends to her statement a copy of an email she sent to Child A’s current social worker on 20thFebruary. In it she records that she had visited Child A at his foster home that day. She says that Child A,
‘is very happy with his current carers. He has been with them for the last 18 months and he very much looks upon their house as his home. There is some uncertainty as to whether he can stay or not and this is causing him a significant amount of stress. He hates the thought that he may have to go. He has a number of friends in the area…’
I am troubled that Child A is expressing this concern. Last August I was assured by the local authority that although this is an independent foster placement the local authority will continue to meet the cost and that the foster carers are willing to continue to provide a home for Child A on a long-term basis. My concern is heightened by the following passage in the advocate’s statement:
‘2. …I spoke to…the Social Worker, via telephone on Friday 16thFebruary as I knew nothing of the proposed care plan. DP had only just taken over the case and had little knowledge but he said at present there was a push from Derbyshire to bring young people back to in house care and this (i.e. Child A’s current foster placement] was an IFA placement’
124. It is equally clear that Child A has concerns about being separated from his siblings. In her letter to DP, the advocate says that,
‘Another cause of concern to [Child A] at the moment is the situation with his brothers and sisters. He looks at them on a daily basis and doesn’t know what is going to happen to them and how much involvement he will have in their future lives, if any. He accepts that his contact with them in the future could be minimal but if that means letterbox only contact then he would have to take that but he would like a photograph update so he knows they are ok.’
As I noted at §34 above, the final care plan for Child A makes it clear that he will not be provided with photographs of his siblings. It would seem that he has not been made aware of this.
125. Child A is an 11-year old boy. It is necessary and appropriate that I should take account of his expressed wishes and feelings. His letter makes it clear that he is aware of the local authority’s plan to place his younger siblings for adoption. He appears to have a good grasp of that plan. However, I have reservations about the extent to which he is able to comprehend that plan at an emotional level and in particular to understand the profound sense of loss he is likely to experience when his three younger siblings leave their present foster home. I am also concerned that although the Child A has a basic understanding that he will not have face to face contact with his siblings once they have been placed for adoption and that his contact with them will be indirect, it appears that he has not been told that, contrary to his expressed wishes, he will not be provided with photographs of them as they grow up. His contact with them will be minimal.
126. Section 1(3)(b) requires the court to consider Child A’s physical, emotional and educational needs. Section 1(3)(c) requires the court to consider the likely effect on Child A of any change in his circumstances. Section 1(3)(e) requires the court to consider any harm which Child A has suffered or is at risk of suffering. It is appropriate to consider these three factors together.
127. It is common ground that Child A is likely to experience a sense of loss when his siblings move on to their new placements. They have lived with Child A all their lives. The likelihood that he will experience a sense of loss forms part must be taken into account in any assessment of his future emotional needs under s.1(3)(b). The reduction in his contact with his mother and grandmother and the removal of his siblings from their present foster home is a change of circumstances which is likely to have an effect on Child A. The court must take this into account under s.1(3)(c). The sense of loss likely to be experienced as a result of separation from his siblings has the potential to cause Child A to suffer emotional harm. This must be taken into account under s.1(3)(e).
128. In addressing all of these issues the therapy recommended by Dr I’Anson is important. So, too, is ongoing indirect contact with his siblings. Child A has already highlighted the importance for him that he be kept informed of their progress.
129. Section 1(3)(f) requires the court to consider how capable Child A’s mother and grandmother are of meeting his needs.
130. This factor gives cause for concern. It is appropriate to set out again a short part of the narrative history from my earlier judgment. I noted that,
‘4. The parents have a long-standing history of drug abuse including crack cocaine and cannabis. The drug abuse has compromised their ability to provide appropriate care for the children. This, in turn, has led to the older children suffering from developmental delay. The parents concede that the threshold set by s.31(2) of the Children Act 1989 is met. I am satisfied that it is.
5. On 15thSeptember 2016 the family home was raided by the police. The parents were both found to be in possession of drugs. It is reported that they were in the process of preparing to smoke a ‘crack pipe’. Their then four children were present in the home. The parents were arrested. ‘
131. The mother’s problem with drug abuse is longstanding. She is feckless and unreliable. She is completely lacking in insight into the needs of her children. If contact is to be beneficial to Child A it will need to be regular, predictable and reliable. It will be necessary for the mother to prioritise Child A’s needs above her own needs. Whether she has the capacity to put Child A’s needs first remains to be seen. There is a real doubt.
132. The grandmother, too, does not escape criticism. Again it is appropriate to return briefly to the narrative history set out in my earlier judgment:
‘6. It was subsequently agreed that the children should be cared for by their maternal grandmother. To enable her to care for them she moved into the children’s home and the parents moved out. The parents were not allowed to have unsupervised contact with the children. They were only allowed to be in the home between 7.00am and 7.00pm to support the grandmother in caring for the children. These arrangements were intended to be a temporary measure. They were supported by a written agreement.
7. The local authority undertook two viability assessments of the grandmother. Both were negative.
8. These proceedings were issued on 12thDecember. The local authority sought interim care orders with a view to the children being removed from the care of their grandmother and placed in foster care. The application was listed for hearing on 22ndDecember. In the event, on the day of the hearing it became clear that the parents’ had removed the children from the grandmother’s care. Their whereabouts were not known. The police were informed. Orders were sought in the High Court. There was concern about the role of the grandmother in the abduction of the children. It was believed that she may have colluded with the parents.’
133. The evidence before the court at this hearing indicates that there are some concerns about the contact between the mother, grandmother and Child A. The guardian acknowledges that Child A does not appear to get much from his contact with his mother and grandmother. There is concern about the ability of the adults, during contact, to take care to promote Child A’s foster placement as his long-term permanent home and not to make comments that may have the effect of undermining the placement. Child A needs to know that he has their permission to remain in this placement and that they acknowledge that it is a very good placement which is meeting his needs.
134. Earlier in this judgment I set out in detail the opinion of Dr I’Anson on this issue. As set out in her report, her starting position is that,
‘58. …sibling relationships tend to provide a longevity of relationships and a protective factor to the wellbeing of the individual child. I would therefore generally believe that such relationships provide more positives in the long term and should take priority over relationships with parents and Grandparents, when…the two are not compatible.’
135. However, Dr I’Anson also recognises the complexities in this case. Child A himself would wish to prioritise ongoing direct contact with his mother and grandmother (and particularly, it would seem, with his grandmother) above direct contact with his siblings. His wishes and feelings should not lightly be ignored. If he is not allowed to have contact with his mother and grandmother now but is instead allowed to have direct contact with his siblings then it is quite possible that when he is old enough to do so he will seek them out. There would then be a risk that he would disclose to his mother and grandmother information concerning his younger siblings that could potentially put their adoptive placements at risk. That is a risk that could not easily be managed. Dr I’Anson notes the advice of the Family Finding Team that finding adopters who are willing to promote inter-sibling contact not only between the siblings who are adopted but also with an older sibling who is in foster care is likely to be difficult. It is with issues such as these in mind that in her recent response to written questions Dr I’Anson said,
‘I agree with the guardian that on balance prioritising contact with Child A’s mother and Grandmother may be the most appropriate course of action. However, I am concerned that this contact is monitored for its ability to reliably meet Child A’s needs.’
136. That formulation of Dr I’Anson’s position, though apparently supporting the plan for ongoing direct contact between Child A and his mother and grandmother, is not a ringing endorsement of that plan. However, it does mean that the court is now faced with an agreed stance taken by the local authority and the guardian supported, if somewhat hesitantly, by Dr I’Anson. Is the court bound by that agreement and if it isn’t what should it do?
137. In Re W (Care Proceedings: Function of Court and Local Authority )  EWCA Civ 1277,  2 FLR 431Ryder LJ made the point that it is no accident that in Re T (A Child) (Care Order)  EWCA Civ 121 ,  3 All ER 1079 the then President of the Family Division, Sir Mark Potter,
‘97. …reaffirmed the jurisprudence relating to the extent to which a judge may depart from the opinion of experts including the local authority's social workers and the guardian:
" In a somewhat different context, but relevant to this case, the extent of a judge's entitlement to depart from the opinion of experts in care cases was elucidated in Re N-B (children) (residence: expert evidence)  EWCA Civ 1052 , 3 FCR 259 by Thorpe LJ. In that case he drew a distinction between (a) those matters and areas of assessment which are rightly the province of those whose professional training and qualification and clinical expertise equips them for the task in hand, such as the evidence of medical experts as to physical injuries sustained by children or those aspects of risk assessments which depend upon medical or psychiatric opinion, and (b) those where the judge is evaluating the opinion of experts as to placement, management and welfare issues which lie at the heart of care proceedings and must ultimately be a matter for the judge. Thorpe LJ observed (at ):
' … the judge was at liberty to depart from the opinion of the experts, even if unanimous, on issues of future placement and management and perhaps even on attachment, balancing risks against advantages.' "
138. Whether Child A should be allowed to continue to have direct contact with his mother and grandmother or whether he should, instead, have contact with his siblings is, in the final analysis, a matter for the court to determine in the exercise of its discretion. I find this decision to be acutely difficult and very finely balanced. There are arguments for and against either outcome. I am concerned that if I prioritise Child A’s contact with his mother and grandmother there may come a time when the local authority concludes that that contact is not in Child A’s best interests and that it should stop. That could happen, for example, because of the mother’s inability to prioritise contact or because of the poor quality of that contact or because of the behaviour of the mother and/or the grandmother during contact. If I allow that contact to continue I am not confident that it will necessarily continue through the remainder of Child A’s minority. However, I acknowledge the concerns which prompted Dr I’Anson to change her position in her response to written questions. On balance I come to the conclusion that Child A should continue to have direct contact with his mother and grandmother. The issue of contact is an issue that will be kept under review at the twice-yearly Looked After Children meetings.
139. If contact between Child A and his mother and grandmother should break down the local authority should consider the position concerning the possible restoration of direct contact between Child A and his younger siblings. The independent reviewing officer should keep this under review.
Contact issues – Child B, Child C, Child D and Child E
140. The most recently amended final care plans for the four younger children acknowledge that ideally these four children should continue to have direct contact with each other after they have been placed for adoption. It is now agreed by all parties, including the local authority, that direct post-placement inter-sibling contact between the four younger children should be underpinned by contact orders under s.26 of the Adoption and Children Act 2002. I shall make those orders.