F-S (A Child: Placement Order) [2021] EWCA Civ 1212

Choice between placement order/adoption or long term foster care/SGO with foster carers with a care plan for an open adoption.

Mother’s appeal against making of a placement order.

This case concerned four children, A, B, C & D. The children were removed from the care of the mother and her partner Mr. S at the start the proceedings as a result of domestic violence and poor home conditions.

The mother separated from Mr. S.

Findings were made that Mr S had caused facial bruising to child A.

There were plans to rehabilitate A and B to the mothers care but these were changed when it was discovered that she had secretly resumed her relationship with Mr. S and had deceived the court and the LA.

The mother proposed that A and B be cared for by the maternal grandmother, who had been negatively assessed, or remain in foster care so that she might resume their care in the future.

B, the eldest child, who was almost 6 at the time of the appeal, had been placed on his own in foster care because he had global developmental delay and it was unclear whether he would be able to live independently as an adult.

At the final hearing in March 2021 a placement order was made for B with a view to an open adoption by his foster carers, including regular contact with his siblings and his mother.
A was also made subject to a placement order.
C and D were placed with their paternal grandparents under a care order.

The mother unsuccessfully applied to revoke the placement order in respect of A and permission to appeal was refused.

Mother’s grounds for Appeal

The mother’s appeal related to B only and her grounds of appeal were that the judge was wrong in law for the following three reasons:

a) An order was unnecessary because the LA’s care plan was for placement with the current foster carers, who were prepared to care for B without a placement order.

b) The judge had applied the wrong test when deciding what would best meet B’s needs and why no other course was possible.

c) The reasons given were insufficient to justify the making of a placement order.

At the appeal, it was accepted that a care order was inevitable and that the choice was between adoption or adjourning under an ICO for an application for an SGO.

The mother argued that the judge was wrong to prefer adoption over the possibility of a less interventionist SGO.

Judgment

The lead judgment in the appeal was given by Peter Jackson, LJ, who carefully went through the key parts of the judgment, which he said had included a “balance sheet of the advantages and disadvantages of the realistic options” (long term foster care/SGO or adoption ) and reasoned conclusions and was described as a “notably careful decision”.

Referring to Re A [2015] EWCA Civ 1254 the point was made that such decisions are extremely hard to unsettle on appeal.

The Court of Appeal did not accept that the judge was wrong in law and said that the judge’s description of a placement order for B, which would “best meets his welfare needs”, must be viewed alongside her other statements including that B’s needs “can only be met” by adoption.

The CA was satisfied that the judge had undoubtedly applied the correct test.

The mother’s arguments were rejected for the following reasons:

i) The judge was entitled to take into account the foster carer’s preference for adoption, notwithstanding their willingness to continue to care for B without a placement order.

ii) The judge was entitled to consider it essential that B receive the very best possible parenting now and throughout his childhood, particularly given his likely complex needs, which would require his permanent carers to be given the freedom to make decisions for him without being answerable to the LA or to the mother.

iii) Adoption offers greater stability. A child’s welfare is measured not only by the care he will receive but also by “the enduring sense of belonging within a family”. [ [2013] EWHC] 3974 (fam)]. The judge was entitled to regard this as a factor of critical importance.

iv) An SGO is not irreversible and might be unsettled or disrupted by future challenges by the mother.

v) The plan for an open adoption was significant as B’s relationship with his mother and siblings was important and there was an opportunity for it to be preserved. The judge was entitled to regard this is more important than the mother’s loss of parental responsibility, which unfortunately, had not served B well in the past.

vi) It was not enough to say that the Judge could have made a less interventionist order if the reality was that a lesser order would not adequately meet B’s childhood and lifelong needs. The judge had explained why a lesser order was not good enough for B and was fully entitled to make a placement order.

Appeal was dismissed.