H and J (Placement Orders)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Green,Lady Justice Whipple |
| Judgment Date | 02 May 2024 |
| Neutral Citation | [2024] EWCA Civ 429 |
| Year | 2024 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2024-000171 |
[2024] EWCA Civ 429
Lord Justice Baker
Lord Justice Green
and
Lady Justice Whipple
Case No: CA-2024-000171
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT
BARROW-IN-FURNESS
Recorder Gough
BW22C50019
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Hunt (instructed by Holdens Law) for the Appellant
Aidan Vine KC and Carolyn Bland (instructed by Local Authority solicitor) for the First Respondent
Matthew Carey (instructed by Milburns Solicitors) for the Third and Fourth Respondents
The Second Respondent was not present nor represented at the hearing
Hearing date: 23 April 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 2 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
With the permission of this Court, a mother appeals against placement orders made in respect of her two youngest children whom I shall refer to as H (now aged rising 6) and J (rising 5).
H and J have three older half-siblings, brothers born in 2006 and 2015, and a sister born in 2009. In March 2022, the local authority started care proceedings in respect of all five children. The basis on which the local authority contended that the threshold criteria for making care orders was crossed included domestic abuse, alcohol misuse, and chaotic lifestyles. The five children were made subject to interim care orders, with the older two in separate family placements, the third in foster care, and H and J placed together, initially with a family friend but from September 2022 with foster carers. Assessments of the parents concluded that they could not safely care for the children. The issue for the two younger children was whether they should be placed for adoption or in a long-term foster placement. At the time of the hearing of the placement order application, the boys remained with the foster carers with whom they had been living for some time. Although those carers had not been approved as long-term foster carers, they indicated they were willing to be assessed as long term carers for the boys if the plan were to be one of adoption.
An important factor in reaching a decision about their future care has been the strength of the relationship between the boys and their elder siblings. A sibling assessment report was completed in October 2022 by a social worker who had known the family for over a year. She recommended that, if H and J were placed for adoption, they should be “placed together in an open adoption [which would] enable and support the children to retain contact with each other and maintain their relationship throughout their childhood and throughout their adult lives.” Whereas contact between the boys and their parents would be on a letter-box basis only, it was recommended that there should be direct contact between H and J and their siblings three to four times a year. In the event that they were placed in long-term foster care, it was recommended that sibling contact should take place two to three times a month, depending on the children's other commitments and to be reviewed annually.
The proceedings were delayed by an application by the paternal grandmother for an independent social worker's assessment. That was granted in November 2022 but, in January 2023, the grandmother withdrew. At a further case management hearing, the case was listed for an issues resolution hearing (“IRH”) in June 2023, with a direction for a decision by the agency decision maker (“ADM”) by April. In the event, a permanence planning meeting did not take place until May. It concluded that the care plan for H and J should be adoption. The plan was approved by the ADM. On 26 May, a pre-matching meeting took place, following which prospective adopters were identified for H and J and positively matched. On 31 May, applications for placement orders were filed. The case was then re-timetabled to an IRH in July at which it was listed for a final hearing in September.
On 28 September 2023, the case came before Recorder Gough for the first time. On that occasion, she made final orders in respect of the three older children. The applications concerning H and J were adjourned for a further assessment of their father and an updated sibling assessment. In the event, neither assessment was carried out. At a further case management hearing before the recorder on 6 November, the directions were discharged. The court concluded that a further assessment of the father was no longer justified in the light of further information about his circumstances and that a supplemental sibling assessment was not required as, according to a recital to the order, the court “was satisfied that an analysis regarding the care plans and sibling relationship could be provided by the guardian and social worker”. There was no appeal against the case management directions order.
For the final hearing, the local authority filed a statement from the children services team manager who, as she accepted in oral evidence, had not spoken to any of the children or witnessed any contact. In her report, she recorded that the local authority recognised that the sibling group were close as a result of their shared lived experiences of neglect and abuse in their parents' care. For the three older children, if a placement order was made in respect of their two younger brothers, their sense of loss would be “devastating”. The team manager recorded in particular that the boys' sister, who had acted as their main carer at home, was understandably upset at the prospect of not seeing them if they were adopted. The team manager reported that the boys enjoyed their contact with their siblings approximately every six weeks, but said that the foster carer observed that they rarely made reference to their siblings outside contact.
The team manger added:
“The local authority recognise that H and J if placement orders are granted would experience the loss of their birth family and the current level of contact would be severed as the prospective adopters would only support indirect contact in the first instance but are open to reviewing this in the future we consider the boys right to a family life balances the loss that will be experienced.”
The guardian, who had prepared a report earlier in the proceedings, filed a supplemental report headed “Final Analysis”. Unlike the team manager, she had visited the boys again. They had spoken with excitement about the contact visit with their siblings planned for the next day when a Christmas-themed adventure had been arranged. In her supplemental report, the guardian expressed her conclusions and recommendations in these terms:
“27. I have carefully considered the risks and benefits of long term foster care and adoption for H and J, and considered all of the available evidence, and made my own enquiries. I recognise the profound impact that adoption would have upon H, J and their family; and that I need to be satisfied that in their circumstances, nothing else will do.
28. On careful balance, it is my unequivocal view that H and J should have a care plan of adoption, because the opportunity for achieving a sense of permanence, stability and security outweighs the benefits of maintaining direct contact with their parents and siblings. H and J are 4 and 5 years old, and their life has been featured by adverse childhood experiences, and further instability because of the long running proceedings. H and J continue to experience emotional and behavioural difficulties, and for them it is important that they can build secure attachments that will influence their development through childhood and beyond to adulthood, and it is my professional opinion that this could not be achieved in long term foster care. H and J need the stability, security, commitment and emotional investment that they would much more likely find in an adoptive placement. H and J need sense of belonging to a family that only a Care Plan of adoption could properly provide them, based on their individual needs and circumstances. It is my professional opinion that this cannot be realistically achieved with a plan of foster care in respect of their unique needs and circumstances; a plan of long term foster care would not meet H and J's needs.
29. I do not underestimate the emotional harm that not having contact with their parents and siblings will have on them, and it is important that the risks are mitigated for them. Their familial relationships have been limited since April 2022 when they were separated from their parents and siblings, however, they have maintained direct contact and will experience a significant sense of loss.”
Under the heading “Case management requirements”, the guardian added
“30. Letterbox contact is proposed, and there should be further discussions with potential carers about whether, with support, they could promote face to face contact between the children and their siblings, which could be beneficial for H and J in terms of their identity. The risks may be too great in terms of promoting parental contact. I understand direct contact is not supported at this stage with proposed adopters, and if they cannot be reassured and supported to promote direct contact between H and J with their siblings, there will need to be careful planning around how contact will be reduced prior to transition between the children, their parents and their siblings.
…
33. The search for an adoptive placement should be time limited for H and J, if the identified placement does not progress. [They] have waited a long time and need to achieve permanence without delay.”
At the final hearing on 8 December, the recorder heard evidence from the children's services' team manager and the guardian. At the appeal hearing, the Court was told by...
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