Re A (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Gloster,Lord Justice Laws |
| Judgment Date | 13 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1611 |
| Docket Number | Case No: B4/2013/2556 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2013 |
[2013] EWCA Civ 1611
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
HHJ Kushner QC
MH11C00205
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice McFarlane
and
Lady Justice Gloster
Case No: B4/2013/2556
Mr Karl Rowley QC and Miss Jayne Acton (instructed by A Local Authority) for the Appellant
Miss Frances Heaton QC and Mr Simon Crabtree (instructed by Fieldings Porter Solicitors) for the First Respondent
Mr Jeremy Weston QC and Miss Joanna Moody (instructed by Stephensons Solicitors) for the Second Respondent
In a judgment handed down on 14 th May 2013 a highly experienced family judge, Her Honour Judge Kushner QC, described the case that she was considering as "one of the most difficult cases I have heard". Although there was a range of issues in the case relating to the five children before the court, the focus of the judge's anxiety was upon the narrow, but important, choice to be made in placing the two youngest boys, now aged five and three, in either a long term foster placement or for adoption. In the event the judge concluded that adoption was the preferred course but, and this is the key point, only if the adoptive placement met each of seven specific requirements. If those requirements could not be met, the judge expressly held that adoption was not in the interests of these children and should not take place. On that express basis the judge made a placement for adoption order under Adoption and Children Act 2002 ("ACA 2002"), s 21.
With the permission of Lady Justice Macur, the local authority now appeal against the placement order insofar as it may include the conditions stipulated by the judge governing the choice of adoptive placement. The mother, who is content with the judge's order provided that the stipulations as to placement are adhered to, has, sensibly, issued a cross-appeal seeking the discharge of the placement order if the local authority's appeal is successful and the judicial stipulations consequently fall away.
Background
Care proceedings involving all five of the children born to this family, all boys now aged between twelve and three years, commenced in June 2011. The local authority relied upon a long history of alcohol and drug abuse, chaotic parenting, children who were seen to be out of control in the home and inadequate hygiene. By July 2012 the parents conceded that none of the five children would be returning to their care. The final hearing took place in January and February 2013 and by the last day of that hearing on 6 th February the parents had accepted that care orders would be made and accepted the care plan for the older three boys, which was that they be placed with long term foster parents. The principal issue therefore related to the form of placement to be chosen for the youngest two, who are M, born 27 th November 2007, and K born 18 th July 2010.
A child psychologist, Mrs Buxton, had been instructed to advise the court as to the best outcome for these children. Her analysis, which came to be shared by the Children's Guardian and, in due course, the judge, was that the placement choices were complicated by the significant relationships existing between the five children. Firstly, M and K were very close to each other. The judge summarised the evidence at paragraph 6.23 of her judgment thus:
"About one thing Mrs Buxton was convinced. M and K were so close that they could not be separated. This has been one consistent theme in this case."
Secondly, M was particularly attached to his older three siblings and his interests required continuing contact with his three older brothers irrespective of the character of his long term placement.
Thirdly, whilst, normally, given K's age, K would be a prime candidate for adoption, the need for him to be placed together with M and the need for M to have continuing contact to the older boys brought into question whether adoption was indeed the right option for K.
Fourthly, M was prone to exhibit disturbed and difficult behaviour which made the task of caring for him particularly challenging.
These various factors led Mrs Buxton to put forward what became described as a "shopping list" of requirements concerning the future placement for M and K. The judge summarised matters at paragraphs 6.75 and 6.76 in these terms:
"In her oral evidence Mrs Buxton had what became referred to in the hearing as her "shopping list" for a suitable placement for these two boys.
There should be two carers, as the boys require more attention than could be provided by only one. The carers need to be energetic with time to devote to the children's' needs. They need to be experienced carers. They should not have attachment issues of their own. They would need additional training to cope with M in particular. They need to be fully aware of the attachment problems M has."
The judge was not assisted in her task by the social work evidence. M's challenging behaviour and the difficulties that he plainly had with relationships and attachment were significant aspects of this case. However, as the judge found, the statutory form designed to describe the children to potential carers was deliberately completed by the social worker so as to omit this important information. The social worker told the judge that had the information been included "it would have seriously narrowed the number of potential adopters in the initial trawl". The social worker explained that the full situation would, however, have been relayed to the link worker for any potential adopters at a later stage, once they were seriously considering taking the children on. The judge expressed concern that the full information would not even have been transmitted at that later stage. At paragraph 6.97 the judge stated that she saw no reason for confidence that the social worker would put forward the full gamut of possible problems with M and K, in the same way that she had done at the earlier professionals' meeting. The judge went on to express the following conclusion:
"I am very afraid that I have been left with the impression that the challenges of looking after these boys have been emphasised when discussing their possible placement with [family members], but seriously underplayed, in fact not disclosed at all, when setting out to attract possible adopters."
The judge's conclusions
Having summarised her various findings in relation to the attributes and needs of these two boys, which are not challenged for the purposes of this appeal, the judge set out to describe the type of placement that they needed. Paragraphs 7.13 to paragraph 7.16 are of particular note:
"I feel that the boys need sibling contact at least twice a year and probably four times a year, geography permitting, to promote this sibling contact properly. I do not feel that this frequency will undermine the placements as long as the carers are able to support the contact in the spirit in which it is intended.
All this can be provided whether M and K are in an adoptive placement or a long term foster placement. The question is, which type of placement is appropriate for them?
I do not feel that any of the above "shopping list", including direct sibling contact, should be sacrificed for the purpose of making these children more "adoptable" in the sense of easier to find a family who will take on their care. If only the normal type of adoption is possible, without the sibling contact, it is not for M and K, in my view. Only a truly open adoption will satisfy their needs; otherwise the children's needs will be manipulated to fit adoption rather than the other way round.
Having said that, as long as the prospective carers fulfil the criteria so far as their personal qualities are concerned and they are prepared to take the boys' needs on board to the extent that they will actively promote the sibling contact, there is a good argument for saying adoption is preferable to long term fostering. This would be for the benefit of M as well as K and incidentally, would also promote the welfare of the older boys."
The key passages underpinning the point that gives rise to this appeal are at paragraph 7.18 and 7.30 and 7.31. At paragraph 7.18 the judge said:
"Accordingly, if such adopters can be found, with all the requisite information guaranteed, I would regard adoption as the preferable outcome for M and K. However, all the ingredients have to be in place. Otherwise long term fostering is the appropriate placement."
At paragraphs 7.30 and 7.31 the judge concluded:
"In relation to the placement applications, I am, for the reasons set out above, satisfied that adoption is in the best interests of both M and K, not simply to safeguard their welfare during their childhood but to project forward into their adulthood as well. If the right adopters cannot be found, adoption is not in the interests of these children and should not take place. Despite this being a finely balanced decision and a difficult decision, the advantages to both children, providing the right adopters are found is evident.
In this light, and again, on the assumption that appropriate adopters can be found, the welfare of M and K dictates that the plans for adoption should go ahead even though (mother and father) do not consent to it. On this basis, I dispense with their consent and make the placement orders in respect of both M and K."
The Court Orders
Following the conclusion of the oral hearing on 6 th February 2013, the judge issued the text of her judgment on 14 th May 2013. It is a very substantial...
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