N (Refusal of Placement Order) [2023] EWCA Civ 364

An appeal by a local authority against the refusal to make a placement order.

The Court of Appeal case of N (Refusal of Placement Order) [2023] EWCA Civ 364 provides a helpful reminder to all practitioners, but specifically to those of us who are regularly instructed by local authorities, that it is wrong in law to adopt a linear approach when considering and analysing the suitability of competing placement options.  Furthermore, it is important when undertaking the Re B-S analysis, this should not be applied in a broad-brush manner, but rather tailored to the specific facts of each case and to the individual needs of the subject children.

Background

The local authority had initiated care proceedings in respect of two children, N and her older half-sibling, G, aged 8 at the time of the appeal judgment.  The children shared the same mother but different fathers.  The children’s mother has an unfortunate and very sad background, having been removed into care aged 2, initially adopted aged 6, but that placement breaking down.  The mother was then adopted again but was subjected to physical and emotional abuse at the hands of her second adoptive mother.  The mother was unsurprisingly very strongly opposed to the prospect of adoption for any of her children.

The local authority became involved due to concerns arising from the mother’s relationship with the father of N, which included allegations that N’s father had committed sexual offences against children.  Despite the local authority’s warnings to the mother that she should not permit him access to the home, she failed to comply.  Additional concerns were raised regarding the poor conditions in the home and G’s school had made a referral that there was evidence of severe neglect.  A joint visit between social services and the police became necessary due the mother refusing access to the social workers.  The police found the children living in dangerous and unhealthy conditions and took them into police protection under s.46 of the Children Act 1989.  The local authority subsequently initiated care proceedings whereby N and G become the subject of interim care orders and placed into local authority foster care.  G’s father was joined as a party to the proceedings, but N’s father played no part.  The mother and G’s father conceded that the threshold for making care orders under s.31 of the Children Act 1989 were satisfied on the basis of the evidence as to the conditions in which the children were found by the police.  The issue for the court at first instance was what orders to make for the future care of N and G.

As would be expected, various assessments were completed.  At the time of the final hearing, the local authority’s final plans, supported by the children’s guardian, were for G to be placed with her paternal grandmother and her partner under a special guardianship order, and a placement order in respect of N.  The mother sought for both girls to be returned to her care, but if that was not possible, long-term foster care.  In respect of G, the mother’s third option was placement with the grandmother as opposed to the father.  She strongly opposed adoption.  G’s father sought for his daughter to be placed in his care.

Following a five-day final hearing, the judge, HHJ Tolson, concluded that there should be a child arrangements order providing for G to reside with her father and a care order in respect of N, on the basis that she would be placed in long-term foster care.  The application for a placement order was dismissed.  The judge made a further order under s.34 of the Children Act 1989 that the local authority “shall permit generous and flexible contact between G and N to include overnight contact in G’s placement for N”.  The local authority sought clarity of the judge’s reasons and subsequently filed a notice of appeal against the refusal of a placement order under s.21 of the Adoption and Children Act 2002 in respect of a child ‘N’, who at the time of the appeal judgment was three years old.  Although the appeal notice had been filed five weeks out of time, an extension of time and permission to appeal were granted.

The appeal

This appeal came before Singh LJ, Baker LJ and Laing LJ on 28th March 2023.  The judgment was handed down on 5thApril 2023.  The appeal of the local authority was subsequently dismissed.

The local authority advanced two grounds of appeal: (1) the judge carried out an incorrect balancing exercise, and (2) the judge carried out an incorrect implementation of the welfare checklist.

Arguments submitted on behalf of the local authority included that the judge “had placed excessive weight on the importance of the sibling relationship to N” and “had gone astray when reaching the decision about N’s future by attaching excessive weight to G’s wishes and feelings…the judge had prioritised G’s strongly expressed wishes and feelings regarding her relationship with her sister and allowed them to outweigh N’s welfare needs”.  It was further argued “that the judge placed undue weight upon the possibility of the mother making sufficient progress to lead to the care order being discharged.  There was no basis upon which the judge could assess the likelihood of this happening, and the fact that the judge took it into consideration was further evidence that he gave undue weight to prioritising familial relationships.”

Additional arguments included that “the judge gave insufficient weight to other factors which favoured adoption over fostering”.  Counsel for the local authority submitted that “the judge had carried out the balancing exercise and the analysis of the factors of the welfare checklist by reference to generalisations about adoption and fostering, rather than the specific needs and circumstances of the child”.  Issue was also taken with what the local authority asserted was a “significant omission” by the judge to address in his conclusions placement options (6) namely “the local authority’s care plan for N of adoption being approved but without a placement order, enabling the mother to be involved in the adoption application to ensure a placement providing the necessary sibling contact”; and (7), “N being placed with prospective adoptive parents under a placement order and with an order for sibling contact to be made”, which had been outlined at the commencement of his judgment as other options.

Mother’s counsel “accepted that the judge had concluded that the magnetic factor for him in making his decision was the impact which a placement order would have on sibling contact” but submitting he was not wrong to do so.  She submitted that the judge had undertaken “careful analysis (…) of the difficulties of achieving in an adoptive placement the level of sibling contact which N needed led the judge to the conclusion that “no adoption plan or order would be likely to provide the level of contact required between the girls” and “that the judge’s analysis was fully in accordance with the requirements laid down by case law.”  Counsel further submitted “that the judge had been required by statute to take into account G’s wishes and feelings when reaching a decision whether to make a placement order in respect of her sister (…) he had acknowledged that this was just one part of the analysis (…) reading the judgment as a whole, it could not be said that the judge had fallen into the trap of allowing G’s strongly expressed wishes and feelings to dictate the outcome.”

Decision

Baker LJ addressed the relevant legal principles, namely s.1(1) and (2) of the Adoption and Children Act 2002, that the court’s paramount consideration must be the child’s welfare throughout her life, this being distinguished from s.1 of the Children Act 1989.  Specific reference was given to s.1(4)(f) of the welfare checklist in the 2002 Act.

Baker LJ then went on to briefly discuss the approach to be adopted by a judge when deciding whether to make a placement order, namely consideration being given to Article 8 of the ECHR and that ultimately, the relationship between a child and parent can be severed “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will do”, per Baroness Hale of Richmond in Re B (Care Proceedings:Appeal) [2013] UKSC 33 [2013] 2 FLR 1075 paragraph 198.  The court went on to say that “a judge must therefore carry out a rigorous analysis and deliver reasoned judgment” citing the key requirement of the judgment, as stated by McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 at paragraph 54:

“is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh it own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

Baker LJ went on to discuss the role of the appellate court on hearing such appeals: firstly, the court is to consider whether the judge’s decision was sufficiently founded on the necessary analysis and comparative weighing of the options, and secondly, if it was, to determine whether the orders were necessary and proportionate.

Baker LJ found that HHJ Tolson identified the options at the outset.  Early on he had “reminded himself of the requirement to “consider the welfare analysis of all the options globally and holistically, that is to say in the round and together”.  His assessment was carried out by reference to the relevant factors in the welfare checklists…he framed the question as being how to weigh the various factors he had identified within the checklists against each other in the context of the various options…and at the end of his judgment he revisited his conclusions in respect of one child in light of his conclusions in respect of the other”.

Baker LJ accepted that HHJ Tolson’s judgment did not set out the advantages and disadvantages of adoption and long-term fostering in a balance sheet, but went on to acknowledge that whilst this approach might be “prudent (…) it is not imperative” and cited from the observations of McFarlane LJ in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 that while a balance sheet “may be of assistance” to judges, “its use should be no more than an aide memoire of the key factors and how they match up against each other…a route to a judgment and not a substitution for the judgment itself.”  Baker LJ acknowledged that usually a judge a will draw all the strands together within a concluding section “but not invariably” citing that judgments should be read as whole.

Baker LJ was satisfied that when reading the judgment of HHJ Tolson as a whole, “he had identified the factors relevant to his decision”.  The court found that HHJ Tolson “recognised and took into consideration the clear advantages of adoption, and the disadvantages of foster placements as part of his overall evaluation”.

Baker LJ further found that given the allocated social worker and children’s guardian were of the opinion that sibling contact was “essential”, it was unsurprising that the judge regarded the sibling relationship as the “magnetic factor” and he was “entirely right under s.1(4)(f)(iii) of the 2002 Act to take into account G’s wishes and feelings, but accepted that it was “but one consideration””.

Baker LJ went on to find that it was “unsurprising that the judge concluded that the level of sibling contact which N required could not be realistically achieved were she to be adopted…the evidence before him was that any requirement for sibling contact narrowed the pool of possible adopters.  The requirement for contact on a scale necessary to meet N’s interests would reduce the pool still further.  In addition, prospective adopters would be discouraged by the fact that G would be having contact with her mother as well as with N so that the “usual seal” between adoptive and birth families could not be maintained.  No sufficient thought had been given to this issue when the plan for adoption was prepared (my emphasis).  In those circumstances, the judge was entitled to conclude on the evidence that this was not a case where nothing else but adoption would do, rather, that long-term fostering was the better option”.

As for the judge not referring to options (6) and (7) in the concluding section of his judgment, Baker LJ was satisfied that in light of the judge’s conclusion that N could not realistically achieve the level of sibling contact which she needed if she were to be adopted, those options were effectively ruled out.

Baker LJ concluded that the judge at first instance had “carried out the necessary analysis of the relevant factors in the welfare checklist and comparative weighing of the options” and could see no basis that the judge had been wrong in his approach.

Take-away points

So what can we as practitioners take away from this case?

1. We must have at the forefront of our minds the rigorous legal test to be applied and the legal principles which the court must consider when faced with a placement application;
2. Care plans recommending a plan of adoption must be carefully scrutinised;
3. Social work evidence should ensure a thorough and robust Re B-S analysis, which considers all the realistic options in a global and holistic manner;
4. Remember that each case is fact specific and all children have different needs.  It is important that when undertaking the Re B-S analysis, the needs of the individual child and their circumstances are considered.  A broad-brush approach should be avoided at all costs.

 This article was written by Lyana Grace Chan, Consultant Barrister at Unit Chambers.