In the recently reported case of T & R (Children)(Refusal of Placement Order)  EWCA Civ 71, the Court of Appeal had to determine an appeal made by a local authority and guardian against the refusal of the trial judge to make placement orders in respect of two young children. The case is of particular interest as the Court of Appeal upheld the trial judge’s original decision rejecting the plan for adoption that had been supported by all of the professionals.
A full reading of the judgment is recommended to obtain a full flavour of the background circumstances to the case. However, and in summary, the parents were members of the traveller community and they had six children who aged in range from 7 to 2 years. The family became known to social services and eventually care proceedings were commenced. Interim care orders were made and the children placed in separate foster care placements. The two youngest children, T and R, were placed together with foster carers with whom it was said in the judgment that they had formed a close attachment.
Findings against the parents were made at a fact-finding hearing and expert assessments were thereafter undertaken by an independent social worker and psychologist.
At the final hearing the local authority sought final care orders in respect of all six children. The care plans for the four older siblings provided for long-term foster care but adoption for the two younger children. The parents sought for all children to be returned to their care. The children’s guardian supported the local authority’s plans for all six children, although she described the issue of adoption for the younger children as a finely-balanced decision.
Whilst the trial judge approved the care plans for the four older children he declined to endorse the local authority’s plans for adoption for the younger two and dismissed the application for placement orders. The judge found that T and R had a strong and real sense of belonging to the family and that a knowledge of their cultural heritage was important to all of the children. He felt that their welfare needs would also best be met in a long-term foster placement. Ongoing contact with their parents would maintain their links to their culture and heritage. The judge invited the local authority to reconsider its care plans with a view to the youngest children also remaining in long-term foster-care.
The appeal was heard in December 2020 and the judgment of the Court of Appeal was handed down at the end of January 2021. The appeal was unsuccessful. In his leading judgment, Lord Justice Baker, addresses why the Court of Appeal considered that it was appropriate for the judge to reject the view of all the professional witnesses that adoption was the only option that would meet these two children’s needs. In his view the judge’s “exposition of his reasons was clear and convincing” and as to why he departed from the recommendation of the guardian.
The Court of Appeal found in that the judge had carefully identified the options and the advantages and disadvantages. The case was one where the continuation of contact was a factor of particular importance. The advice of the psychologist was that the contact between the siblings throughout their childhood was central to the psychological development of the children. If the court did not make sure that contact between the six children continued it would risk damaging the psychological development of the sibling group. Whilst the adoption social worker was optimistic about the prospects of finding adopters who would be willing to accept ongoing sibling contact, it could not be guaranteed that such adopters could be found or that they would adhere to any future commitment to contact.
The Court of Appeal also accepted the importance that the judge had attached to continuing contact between T and R and their parents. That contact represented the best prospect of “maintaining and nurturing” the children’s understanding of their cultural identity and heritage.