B (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lord Justice Davis,Lord Justice Underhill |
| Judgment Date | 17 January 2018 |
| Neutral Citation | [2018] EWCA Civ 20 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2017/2501 |
| Date | 17 January 2018 |
[2018] EWCA Civ 20
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
Sitting at Leicester
Her Honour Judge GEORGE
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lord Justice Davis
and
Lord Justice Underhill
Case No: B4/2017/2501
Ms Sarah Morgan QC and Ms Olivia Magennis (instructed by R P Robinson Solicitors) for the appellant (B's father)
Ms Charlotte Georges (instructed by Nelsons) for B's mother
Ms Deirdre Fottrell QC and Ms Louise MacLynn (instructed pro bono by Emery Johnson Astills) for father's cousin, I, and her partner R
Mr Martin Kingerley (instructed by the local authority) for the local authority
Mr Will Tyler QC and Ms Emily James (instructed by Straw and Pearce) for B's children's guardian
Hearing date: 23 November 2017
Judgment Approved
Sir James Munby, President of the Family Division:
This is an appeal from an order of Her Honour Judge George, who was sitting in the Family Court at Leicester hearing care proceedings in relation to a little girl, B, who was born in the spring of 2016. B has an elder full brother, H, who was born in 2015. He was adopted in 2016. The essential issue before Judge George was whether B should be placed with H's adoptive parents or with her father's cousin, I, and her partner R. Judge George gave judgment and made her order on 21 August 2017. She made care and placement orders with a view to B's adoption by H's adoptive parents.
B's father sought permission to appeal, which was granted by McFarlane LJ on 13 October 2017. He observed that the appeal raises an important point of principle. The appeal is supported by B's mother and by I and R; it is opposed by the local authority and by B's children's guardian. The appeal came on before us on 23 November 2017. B's father was represented by Ms Sarah Morgan QC and Ms Olivia Magennis, B's mother by Ms Charlotte Georges, I and R by Ms Deirdre Fottrell QC and Ms Louise MacLynn, the local authority by Mr Martin Kingerley, and B's guardian by Mr Will Tyler QC and Ms Emily James. At the end of the hearing we reserved judgment.
The point of principle referred to by McFarlane LJ, and which has been the focus of the excellent submissions we have had the pleasure of reading and hearing, relates to the ramifications of the decision of this court in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2017] 1 FLR 330. Before going any further, and the better to put the key passages in Judge George's judgment in context, it is convenient to examine the decision in Re T, a case in which, as it happens, I gave the only judgment.
I start with this ( Re T, para 43):
“From the very earliest days of the 1989 Act … the court has set its face against the joinder in care proceedings of foster parents or prospective adopters. Two decisions of this court explain why.”
That was a reference to the decisions of this court in Re G (Minors) (Interim Care Order) [1993] 2 FLR 839 and in Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FLR 959.
The central principle was explained in the latter case by Wilson LJ ( Re A, para 24):
“The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her.”
He continued (para 34):
“I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child's committal into care, the placement order is not the court's last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order … As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s 18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child.”
I said much the same in Re T, para 50:
“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children's guardian … who has the task, indeed is under the duty, of subjecting the local authority's care plan to rigorous scrutiny and, where appropriate, criticism.”
I went on to recognise ( Re T, para 51) that there might be “an exceptional case justifying [a] departure from the general approach”, echoing in this respect what Wilson LJ had said in Re A, para 35:
“To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.”
Waite LJ had similarly qualified the general principle when in Re G (page 846) he contrasted what was “normally” appropriate in “ordinary circumstances” with the circumstances in Re G itself, which he described as being “exceptional … with many unusual features.”
Her Honour Judge George, in a careful and detailed judgment to which I wish to pay deserved tribute, appropriately and correctly directed herself by reference to the relevant provisions of the Children Act 1989 and the Adoption and Children Act 2002 and to the judgments of the Supreme Court in Re B [2013] UKSC 33 and of this court in Re B-S [2013] EWCA Civ 1146, Re R [2016] EWCA Civ 1625 and Re W [2016] EWCA Civ 793. She also recognised that Article 8 was engaged, acknowledging the application of the principle of proportionality and (judgment, para 14) that the court “should make no more interventionist an order than is necessary to meet the needs of the child.” There was, and could be, no criticism of that part of her judgment.
Turning to consider Re T, Judge George said this (judgment, paras 19–21):
“19 … That was a case where the potential adopters had also been the child's foster carers for a period of time and they sought to be made parties to proceedings. The court found that it was not necessary for the prospective adopters to be joined, they had already been positively assessed, and cautioned against, in a case such as that one, allowing the process to become a dispute between prospective adopters and the birth family, “lest the court be diverted into an illegitimate enquiry as to which placement will be better for the child because that is not the question before the court.”
20 This case can be distinguished from that one because [B] has no existing relationship with the proposed adopters as existed between the child and prospective adopters in Re T. I have to determine this case in the knowledge that the prospective adopters for [B] care for her full sibling brother. To the extent that fact is known, a degree of comparison between the options before the court is unavoidable in seeking to establish what [B]'s welfare needs are and how they can best be met. That inevitably happens when the court weighs up the pros and cons of each option. However, as I hope this judgement will show, it is the principle of adoption that the court is considering in the particular facts of this case, not choosing the better of two alternative placements.
21 The local authority asserts that, all things being equal as to the quality of each placement, [B]'s welfare throughout her life lies with her being brought up with her brother. At the pre-placement stage the court is still considering adoption in principle, in this case in the knowledge that the prospective adopters care for [H]. In weighing the pros and cons of each option the court must steer a course between the known fact that [H] has already been placed for adoption and trying to avoid it being a competition between two possible placements. The court must undertake the necessary balancing exercise, but in the knowledge that the adoption placement whilst still being considered in principle holds [H]. That is the approach I have attempted to take in this case.”
The judge continued (paras 25–27):
“25 There is no authority on all fours with this case where a sibling is already placed with prospective adopters. The case law, in my judgment, whilst making clear that the placement options are not to be seen as in competition requires the court to carry out a holistic global analysis of the pros and cons of each option. The adoption option in this case cannot ignore the fact that if placed with adopters [B] will be living with a full sibling. Beyond that fact the court seeks to resist being drawn into a comparison between the two placements and certainly is not asking the question of which is the better placement.
26 The question in this case is whether there is an over-riding requirement pertaining to [B]'s best interests which makes adoption the right outcome for her, despite the positive assessment and viable option of a placement within...
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