CM v Blackburn with Darwen Borough Council [1] M (A Child) [2] (by her Children's Guardian) and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Underhill,Lord Justice Beatson |
| Judgment Date | 18 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1479 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 November 2014 |
| Docket Number | Case No: B4/2014/1117 & 1117(A) |
[2014] EWCA Civ 1479
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Preston County Court
Her Honour Judge Singleton QC
DI13C00154
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Lord Justice Ryder
and
Lord Justice Underhill
Case No: B4/2014/1117 & 1117(A)
and
and
Mr Karl Rowley QC and Mr Shaun Spencer (instructed by Howells Solicitors) for the Appellant
Ms Gillian Irving QC and Mr Paul Hart and Mr Zimran Samuel (instructed by Blackburn with Darwen Legal Services) for the First Respondent
Ms Frances Heaton QC and Ms Lisa Houghton (instructed by Farleys Solicitors LLP) for the Child 'M'
Hearing date: 2 September 2014
On 14 March 2013 Her Honour Judge Singleton QC dispensed with the consent of the mother of a four year old girl to her being placed for adoption and made a placement order in respect of the child on the application of the local authority, Blackburn with Darwen Borough Council. The consequence is that the child may now be placed for adoption by the local authority adoption agency and her mother will not be able to oppose the making of an adoption order unless a court gives her leave to do so. The child's mother has been given permission to appeal against that order and this court heard that appeal on 2 September 2014. The child's putative father, who does not have parental responsibility for her, has played no part in her life or in the proceedings in the county court and did not appear before this court. At the conclusion of the hearing the appeal was dismissed and these are my reasons for concurring in that decision.
The child, who I shall call 'M', is now five years old. She is placed with foster carers and has had four different placements since she was born. She last lived with her mother on 9 June 2011 when she was made the subject of an interim care order and placed with her first foster carers. On or about 29 May 2012 a special guardianship order was made on the basis that M went to live with her maternal grandmother who already had the care of two of her cousins. She was removed from that placement and placed with her present foster carers on 4 June 2013.
It is agreed between the parties that M's mother is not in a position to care for her. It is also agreed that M's mother will not be capable of caring for her in the foreseeable future. M was removed from her care in circumstances of neglect, inappropriate parenting, drug use and relationships with men who presented a risk to the child. It was agreed that the jurisdictional threshold for the making of public law orders under section 31 of the Children Act 1989 was satisfied. The mother's present partner, with whom she has cohabited for several years, has subjected her to domestic violence and other emotional / psychological abuse. He is a man who has been refused contact with his own children and who is said to lack insight into the impact of his behaviour on others. In the context of the negative assessment of her, M's mother did not put herself forward as a carer for M in the court below. She realistically confirmed her position to this court: she does not say that she will be able to change her parenting within a timetable that is consistent with the child's welfare. She accepts that M must be cared for outside her birth family until adulthood.
M was removed from her maternal grandmother's care because the grandmother placed her at risk of significant harm. M's grandmother had permitted unauthorised contact between M and her mother and had allowed the father of M's cousins who were also in her care to have extensive contact with the children in her home. That man is a 'schedule one' offender who was imprisoned in 2009 for sexual offences against children. After the first day of the final hearing, the grandmother did not seek to have M returned to her care and thereafter acquiesced in the mother's position with the consequence that there is no member of the birth family who is available or able to care for M.
The key issue in the proceedings in the county court was whether adoption was required to safeguard M's welfare. The judge decided that it was. The only alternative would have been a placement with long term foster parents which would have retained the child's status as a member of her birth family and would have permitted some contact between M and her mother. The judge had the advantage of detailed evidence from a social worker and an analysis by the guardian that agreed in the conclusion that adoption was overwhelmingly the best option for M. They agreed that it was the only way forward that would meet the child's need for stability. The benefit of maintaining contact as against the detriment of severing family ties was part of the court's evaluation. The judge conducted both a comparative welfare analysis of the two options that were available, looking at the benefits and detriments of each, and a proportionality evaluation in coming to her decision. Her methodology is not criticised.
The sole issue on this appeal is whether a court can make a placement order when the local authority's care plan describes what has come to be known as a 'dual track' or 'twin track' approach. I shall refer to this as 'dual planning' and a 'dual search'. In this case the care plan that was considered by the judge stated as follows:
"It is expected that it will take 6–12 months to identify an appropriate placement for [M]. The local authority plans to search for an adoptive placement for 6 months and then twin track a plan of (sic) adoption and long term foster care after 6 months
[…]
[the local authority] is confident that an adoptive placement will be identified for [M]."
The context for that plan was evidence from the local authority that there was a significant prospect that an adoptive placement would be found and that there were 27 potential families identified as being available to be considered. The reason for the plan was the local authority's evidence about the impact of delay on M should the right adoptive placement not be found in six months.
The judge was acutely aware of the issue that has been brought to this court. She invited submissions about it and came to the clear conclusion that there was no conflict between a decision by the local authority 'agency decision maker' that an adoptive placement was required and a plan which described a time limited search for such a placement after which a concurrent search for adoptive and long term fostering placements would take place i.e. a dual search. The appellant's primary case is that adoption as the best placement option on the merits should have failed the judge's proportionality evaluation because there was available an alternative that the local authority proposed as being appropriate within six months of the order complained of. This court is asked to decide whether the judge was right in law to decide that nothing else than adoption would do in the circumstance where the local authority's own plan described something else in as short a period as six months.
The Submissions
Mr Rowley QC, in an attractive argument on behalf of the appellant, concentrated on the formulation of legal policy that is to be found in Re B (A Child) [2013] UKSC 33 and Re B-S (Children) [2013] EWCA Civ 1146. He submitted that as a matter of law a dual search does not reflect a circumstance where nothing else will do because long term fostering will do. He also submitted that the effect of the decision of the Supreme Court in Re B is that there is a presumption against non-consensual adoption which can only be displaced where nothing else will do. He was realistic and open in acknowledging that the effect of his submissions would be that courts may not be able to make placement orders in some cases where children are more difficult to place, at least not until an adoptive match has been found for the child concerned.
Mr Rowley reminded the court of the strength of the language used in the Supreme Court, which for convenience can be taken from the summary of Sir James Munby P sitting in this court in Re B-S where at [22] he said:
"the language used in Re B (A Child) [2013] UKSC 33 is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are a 'very extreme thing, a last resort' only to be made where 'nothing else will do' and where 'no other course [is] possible in [the child's] interests', they are 'the most extreme option', a 'last resort – when all else fails', to be made 'only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do'."
Mr Rowley acknowledged that there may be a contingency in a care plan to take effect if "unforeseen events frustrate the main goal" and rationalised that concession as the distinction between "recognising the possibility of failure" and "of having decided that both long term fostering and adoption will do". As I shall explain, it is in that concession that the factual fallacy is contained which is fatal to the appeal in this case. In order to succeed Mr Rowley would have to have demonstrated on the facts that what was set out in the care plan in this case was not a legitimate contingency but rather a conclusion that something else would do.
Mr Rowley did not pursue with any vigour that element of...
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