N (Refusal of Placement Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Elisabeth Laing,Lord Justice Singh |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] EWCA Civ 364 |
| Docket Number | Case No: CA-2023-000146 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
[2023] EWCA Civ 364
Lord Justice Singh
Lord Justice Baker
and
Lady Justice Elisabeth Laing
Case No: CA-2023-000146
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH
HH Judge Tolson KC
PE22C50025
Royal Courts of Justice
Strand, London, WC2A 2LL
Clare Gould (instructed by Pathfinder Legal Services) for the Appellant
Martha Gray (instructed by HRS Family Law) for the First Respondent
Gary Crawley (instructed by Family Law Group) for the Second Respondent, by her children's guardian
Hearing date: 28 March 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2.00pm on 5 April 2023.
This is an appeal by a local authority against a decision to refuse an application for a placement order under s.21 of the Adoption and Children Act 2002 in respect of a child, hereafter called “N”, who is now aged rising three.
At the end of the hearing, we informed the parties that the appeal would be dismissed for reasons to be given at a later date. This judgment sets out my reasons for agreeing with that decision.
Background
The proceedings concern two children, N and her older half-sister, G, who is now aged 8. The girls share the same mother but have different fathers. The mother has a disturbed, and disturbing, background. She was removed into care at the age of 2 and initially adopted aged 6. After that placement broke down, she was adopted again but then subjected to physical and emotional abuse at the hands of her second adoptive mother. Unsurprisingly, these traumatic experiences have left her even more opposed to the prospect of adoption for any of her own children. In addition to the two children who were the subject of these proceedings, she has three older boys by a previous relationship, who have lived with their father since 2014, and she has recently given birth to another baby.
The relationship between the mother and G's father broke up when G was a baby. Thereafter, G lived with her mother and had occasional contact with the father who had moved away to another part of the country. In 2018, the mother started a relationship with N's father which became violent and abusive soon after N was born. The local authority's children's services became involved with the family because of a number of concerns including allegations that N's father had committed sexual offences against children. The local authority warned the mother not to allow him into the home, but received information that she had not complied with that warning. There were further concerns about poor conditions in the home and G's school made a referral arising out of evidence of severe neglect. After an investigation under s.47 of the Children Act 1989, the children were made subject to child protection plans. After struggling to see the children at home, the social workers asked for a police welfare check which was carried out on 2 March 2022. The police found the children living in dangerous and unhealthy conditions and took them into police protection under s.46 of the 1989 Act. At that point, the local authority started care proceedings and both girls were made subject to interim care orders and placed together in foster care. In the judgment now under appeal, the judge observed that this was “a highly-skilled foster placement” where the girls thrived.
G's father was joined as a party to the proceedings, but N's father has played no part in them. The mother moved to another local authority area, and it later emerged that she was expecting another baby. In the course of the proceedings, the mother and G's father conceded that the threshold criteria for making care orders under s.31 of the Children Act were satisfied on the basis of evidence as to the conditions in which the children had been found by the police in March 2022. Thus the issue for the court was what orders to make for the future care of the girls. To assist resolving that issue, various assessments were carried out, including parenting assessments of the mother and of G's father and his current partner, a special guardianship assessment of G's paternal grandmother and her partner, and two sibling assessments of the relationship between G and N. The local authority filed an application for a placement order in respect of N, and the further documents filed with the court included a statement from the local authority “family finder” and a child permanence report for N.
At the final hearing, the position of the parties was as follows.
(1) The local authority, supported by the children's guardian, sought a special guardianship order in respect of G, placing her with her paternal grandmother and partner, and a placement order in respect of N.
(2) The mother sought the return of both children to her care. If the court concluded that was not possible, she proposed that they be looked after in long-term foster care. Her third option for G was placement with the grandmother, as opposed to the father. She was strongly opposed to adoption for N.
(3) G's father asked for his daughter to be placed in his care.
The final hearing took place over five days, at the end of which judgment was reserved and handed down on 25 November 2022. Following judgment, the judge made a child arrangements order providing for G to live with her father and a care order in respect of N, on the basis that she would be placed in long-term foster care, either with the carer with whom she and G have been living since the start of proceedings or with another long-term carer. The application for a placement order was dismissed. The judge made a further order under s.34 of the 1989 Act that the local authority “shall permit generous and flexible contact between G and N to include overnight contact in G's placement for N”. He gave G's father liberty to apply in the event of the contact arrangements proving unsustainable. The local authority sought clarification of the judge's reasons which was provided on 3 January 2023. On 27 January 2023, the local authority filed notice of appeal (five weeks out of time) against the refusal of the placement order. On 13 March 2023, I granted an extension of time for appealing and permission to appeal.
The judgment under appeal
Since the hearing, N has remained with her foster carer but G has moved to live with her father who, as stated above, lives in another part of the country some 200 miles away. At the appeal hearing we were informed that, contrary to the plans for the children, no face-to-face contact has yet taken place. One other development is that the mother has now given birth to the baby she was expecting, and after a period in a mother and baby unit is now living with the baby in the community. To date, no proceedings have been started in respect of the new baby.
At the start of his judgment, the judge observed that the proceedings were unusual in that there were “no fewer than seven reasonably arguable options” for the court to consider. In summary, these were:
(1) G and N remaining in their foster placement for the long term;
(2) G and N returning to their mother's care;
(3) G living with the father under a child arrangements order;
(4) G living with the grandmother under a special guardianship order;
(5) N being placed with prospective adoptive parents under a placement order;
(6) 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 made.
The judge commented that “the reality is that there is no ideal answer and an array of pros and cons for all the options.”
In summarising the background, the judge identified what he regarded as an important feature of the case at paragraphs 7 to 9:
“7. It is also a highly significant feature of the case that the girls have a close relationship with each other. Unpacking that, what is really meant is (i) that G feels very attached to N; (ii) dreads separation from her; but also, (iii) has in the past adopted the role of a carer towards her little sister; and, (iv) there is a sense that N has relied on her relationship with G. On this last point, N is described as presenting as rather ‘out of it’ when first in the foster home – rather lost in her own world rather than relating to those around her; but also as lighting up when G was in the room. The conclusion is that N – who also has some catching up to do in terms of her development — was under-stimulated by her ‘lost’ mother, but not by her older sister.
8. What is abundantly clear is that G dreads losing N. She has written me the most touching of letters telling me so. She has gone out of her way to tell anyone and everyone who would listen that this is her worst fear. She has been given a ‘worry monster’ by her foster carers and the loss of N is the worry which, for months on an almost daily basis as I understand it, she has physically (i.e. on a piece of paper) deposited with the monster before leaving for school as a way of defusing her fear. The worry has ‘disappeared’ on her return home – but only to be posted again the next day. More than this, there is to my mind a quite remarkable analysis of her fears for an 8 year old, in the context of the adoption care plan for her sister. G has told her guardian that what she fears is that N will, first, be a long way away and, secondly, will forget her. It is indeed the evidence before me that there is no local adoptive placement for N at the current time (and thus N could be placed for adoption...
To continue reading
Request your trial