S-F (A Child)  EWCA Civ 964
(Leading judgment given by Sir Ernest Ryder, Senior President)
I was recently very helpfully reminded of this 2017 case which is perhaps not too well-known as it raises no new issues of law or principal and the issue on appeal was described as ‘clear and simple’— was the judge wrong to prefer long-term fostering to adoption?
In S-F the trial judge made a care order in respect of a four year old boy but refused the LA’s application for a placement order. The child, who had a genetic chromosomal abnormality and displayed challenging behaviours, was then removed from the care of his parents and placed with his respite carer who was available to also be his long-term foster carer. The boy was having limited contact with his parents.
With leave of the single judge the LA, supported by the guardian, appealed the court’s decision to refuse to make a placement order. The parents opposed the appeal.
The Court of Appeal (CA) observed that the evidence upon which the family court was asked to make a decision about the placement order application was ‘limited’.
The Senior President added that this description seemed to take the parties by surprise but that it was accurate.
There was what was described as a balance sheet of the pros and cons of the placement options prepared by the social worker and commented upon by the guardian but that there was little detailed evidence about the LA’s preferred plan and no evidence about its contingency plan, in particular, no assessment of the foster carer.
No application had been made to adduce additional evidence before the CA.(para 6)
This had left the appeal court with the stark disagreement about the trial judge’s decision and the limited evidence open upon which the judge made that decision. The Senior President commented that:
“Given that the appeal of necessity rests on a value judgment about the weight that the judge attached to the balance of factors demonstrated in the evidence ie the benefits and detriments of the realistic placement options, one might expect the quality of the evidence on the point to have been scrutinised before coming to an appeal hearing”.(para 7)
In concluding that the evidence was limited the CA had considered Re V (long-term fostering or adoption  EWCA Civ 913 and Re B-S (adoption: application of s47(5)  EWCA Civ 1146 and reiterated that the proportionality of interference in family life that an adoption represents ‘must be justified by evidence not assumptions that read as stereotypical slogans’, further noting that ‘a conclusion that adoption is better for a child than long-term fostering may well be correct but an assumption as to that conclusion is not evidence even as described by the legend as something that concerns identity, permanence, security and stability’.(para 8)
The CA reminded practitioners that ‘in order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long-term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child’ and, ‘if appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, eg: research into the feasibility and success of different types of long-term placements by reference to the age, background, social or medical characteristics.’
The CA also reminded practitioners that the citation of other cases to identify the benefits of adoption as against long-term fostering is no substitute for evidence and advice to the court on the facts of the particular case. (para 9.)
With reference to the Adoption Agencies Regulations 2005, the Senior President emphasised the evidential importance of the ‘permanence report’ and noted that by regulation 17 the permanency report has to contain an analysis of the options for the future care of the child and why adoption is the preferred option, and that by regulation 12, the LA’s adoption agency decision (ADM) has to be recorded in the child’s care record.
The Senior President reminded practitioners that the permanence report and the ADM’s record of decision, which contain the required analysis and reasoning which is necessary to support an application for a placement order, are disclosable documents that should be scrutinised by the children’s guardian and are susceptible to cross-examination. Stating that it is good practice to file these documents with the court in support of a placement order application, the Senior President observed that it is ‘poor practice not to file them with the court because this is the documentation that records in original form the pros and cons of each of the realistic care options and the social work reasoning behind the LA’s decision to apply for a placement order.’ (para 11)
In S-F the CA found that the good practice identified above was not followed. The trial judge did not have the permanence report or the ADM’s record of decision, therefore whatever analysis of the options those documents could have provided was missing.
The case is also of interest for a number of other important and helpful reminders:
The decision to make a care order was not an issue in this appeal.
Long-term fostering was not the LA’s first choice and their case was that it only proposed to undertake a search for an adoptive placement over a period of six months and that, if the search was unsuccessful the LA then intended to fall back on a contingency plan of long-term fostering with the respite carer.
It was agreed (for the reasons referred to in more detail below), that the child would need direct contact with his parents and the LA’s plan, supported by the guardian, was to seek an adoptive placement that could provide direct contact with the parents.
It had taken six months for the appeal to be heard and the CA expressed regret that during this time the LA had not seen fit to undertake concurrent planning in order that they might know about the success or likelihood of success of a search for an adoptive placement.
The point was made that the appeal was being heard at a time when the LA would have abandoned its search for adopted carers, the child having been with his foster care for six months.
The Senior President commented that:
“ The irony of that circumstance appeared to be lost on the local authority until it was pointed out. It is no good saying that appeals should not take so long. I am sure everyone would agree but local authorities have statutory care planning and review obligations and that includes consideration of the adverse impact on a child of delay. If it is the case that a welfare analysis necessitated a time limited search for adoption, the same analysis should inform the local authority’s planning process over the same period of time. The circumstance in which the child finds himself is exactly the same as if the local authority had failed to find an adoptive placement during the six months the child has been with his respite foster carer“. (para 5)
Having commented about the limited nature of the evidence upon which the Family Court had been asked to make a decision about the placement order application the Senior President added that this description seem to take the parties by surprise but that the comment was accurate.
The child’s need for continuing direct contact with his parents was accepted by the parties and three specific factors were identified as being relevant to that need; his genetic chromosomal abnormality, his challenging behaviours and the need for reassurance of direct contact with his parents to cope with his separation from them.
In oral evidence the guardian had told the trial judge that the child would suffer ‘a terrible loss’ on being separated from his parents and would ‘need a lot of reassurance’ that will be provided by direct contact with them and the court was advised that the LA should endeavour to find a placement that could facilitate direct contact.
The Senior President noted with concern that, save for identifying placements in an appropriate category on the national adoption register, there was no evidence about the feasibility of finding such a placement for a child with these needs within a reasonable time scale. This was a particular concern because the court was told that the child needed a decision to be made about his future in no more than six months and that he needed ‘very special prospective adopters’.
The guardian had told the family court that she did not know whether an adoptive placement with contact could be found.
At the same time the guardian had expressed the opinion in evidence that the child’s need for contact must take second place to the need to find a permanent placement for him.
Whilst this general principle was said to be unobjectionable the circumstances of this particular case were more nuanced.
The child’s developmental delay was said to require an increased level of support on a day-to-day basis and he was said to be ‘a very confused, highly stressed and sometimes very angry little boy’ which was likely to be made worse by removal from his parents.
Referring to the context in which the LA had argued for an adoptive placement and a placement order the Senior President commented that:
It is not correct to submit as the local authority did that there was ‘simply no evidence to support long-term fostering as a viable “good enough” alternative to adoption’. The child’s needs as described in the evidence were a very relevant factor and the contingency plan to place the child with his respite foster carer was described as excellent and would have come into effect for the reasons given at the six-month point. It would also have provided the direct contact that the child needed. His foster carer had already demonstrated her capability to provide for his needs.
The CA made no criticism of the trial judge’s legal analysis.
The judge had referred appropriately to the Adoption and Children Act 2002 and rightly relied upon Re P (placement orders: parental consent)  EWCA Civ 535,  2FLR 625 per Wall LJ at :
“The child’s circumstances may require a statutory intervention, perhaps even require the indefinite or long-term removal of the child from the family and his or her placement with strangers but that is not to say that the same circumstances will necessarily require that the child is to be adopted. They may or may not. The question is whether what is required is adoption”.
“If adoption is always to be preferred over long-term fostering, as is the policy decision, because it has an added stability and permanence, then those words of the learning Lord Justice are meaningless. As soon as one concludes that a child must be removed indefinitely or for the long term, adoption will follow is night follows day. That is not the case. You cannot say one size fits all. Each case needs to be considered on its own facts”.
(paras 17 and 18)
When dismissing the appeal the Senior President commented that the judge had been acutely aware that he was looking for evidence that adoption was required and was equally aware of the importance of stability and permanence.
However, given the limited evidence which existed, the Senior President said that he could not say that the judge had been wrong in the balance that he undertook or the conclusion to which he came.
Finally, the CA also reminded practitioners that they have a duty, including where appropriate to the LAA, to consider whether each party needs to be separately represented on an appeal, as in this case the LA and the guardian had an identity of interest, as did the parents.
It appears from the judgment that legal costs were saved because of an appropriate decision made by counsel not to claim their fees!