This article considers the successful appeal of a first instance case in which a final placement order was made in respect of a young child with complex medical needs.
Background to this case
This case involved care proceedings in respect of C, a young child aged 3, who had complex medical needs. C was the youngest of four children, all of whom were subject to care proceedings. She had spent the first 16 months of her life in hospital and the latter half in a specialist foster placement with agency foster carers. The foster carers Mr and Mrs D worked part time in order to care for C, and were specially trained in meeting C’s specific medical needs. These needs made C particularly vulnerable to stress. Mr and Mrs D had expressed an interest in offering C adoption or long-term foster care on the condition that they received extensive financial support in order to meet her needs. The local authority did not agree to this package.
At the final hearing, the local authority sought a care and placement order. The Mother, supported by the Father, sought a return of the child to her care or in default for C to remain with Mr and Mrs D long-term. The Guardian’s reluctant position was that adoption was the ‘next best thing’ for C if long-term care with Mr and Mrs D could not be secured. She argued that the placement search should be limited to 6 months with the plan thereafter to be long-term foster care, with a hope that Mr and Mrs D would be reconsidered for this. The court had the benefit of the local authority’s statement addressing firstly placement with the Mother and secondly the pros and cons of C remaining in long-term foster-care with Mr and Mrs D. In her ex tempore judgment, the judge made the following important observation at paragraphs 24 and 25 (20 of the appeal judgment):
- If I were satisfied that C could not return to her parents, and I had a magic wand, I would be waving it incredibly hard to have this little girl stay where she is. For reasons I will come on to when I deal with the evidence I have heard, and the plans for her, there are a number of reasons for that. It would avoid disruption for her. She would remain in a settled family home that she regards as her family. Her medical needs would all be met. She would have no disruption of her medical care. She would have a progression into the school she currently thinks she is going to in September, which is just up the road. In addition, most significantly, she would continue in some form or other to have contact with her birth family.
- However, I do not have a magic wand, and for all the efforts of the parents themselves, for whom the foster carers are a backup plan, and the Guardian, and even the aunts who now support them, I cannot make it happen.”
The court made a placement order for adoption. Judgement was finalised at paragraph 127 where the judge urged the local authority to “move heave and earth” to keep C where she was, and to look at the possibility of the D’s adopting C.
The appeal was brought by the Mother against the on the following grounds, set out at paragraph 26 of the appeal judgment. She opined that the judge’s decision was wrong in 5 ways:
- She wrongly concluded that “nothing else would do” when she did not have evidence that long term foster care with Ds was not a realistic option.
- She erred in concluding that “nothing else will do” and that adoption was proportionate and in C’s best interests when there was further information in respect of placement with the Ds as long term foster carers required to conduct this analysis and the court was not provided with the financial information sought in respect of fostering allowances.
- She failed to undertake an analysis of (a) whether adoption was in fact a realistic option in light of the evidence of the family finder and (b) the impact of delay on C if an unsuccessful search is undertaken.
- She failed to balance the risk of breakdown of an adoptive placement against the risk of placement breakdown with these particular carers, as opposed to long term foster care in general.
- She failed to press the Local Authority for a contingency plan for the event that no adoptive placement is identified, when to do so would have revealed whether long term foster care with the Ds is a realistic option.
Mother succeeded in her appeal. The appeal judge set aside the placement order and allowed grounds 1 and 2 of the appeal to succeed. At paragraph 32 of the appeal, direct reference was made to the ex tempore judgment of paragraph 24:
32.At paragraph 24 (quoted at  above), the judge identified some of the factors in favour of a continued placement with Mr and Mrs D, saying that she would “come on to” the reasons why C should stay in their care later in the judgment. In fact, she did not do so. She never analysed the advantages and disadvantages of the placement continuing, as she would have had to do if she regarded it as a realistic option. Instead, having concluded that the child could not be rehabilitated with the mother, the judge seems to have concluded that the realistic options were either (a) long-term foster care with different carers or (b) adoption with carers who may or may not be Mr and Mrs D
The appeal court found that the judge at first instance had failed to deal clearly with the option of long-term foster care of Mr and Mrs D as carers. The appeal judgment placed emphasis on the gap in financial information before the court and on the degree of investigation that should have been done into the financial specifics that became such a significant a barrier to Mr and Mrs D continuing to care for C. The court had not seen any actual evidence of how this conclusion had been reached or if any more could have been done to resolve it. This is the information which ought to have been obtained pursuant to ground 2 of the appeal. Without it, the analysis of Mr and Mrs D as long-term foster carers was not sufficient, tying into ground 1.
During the appeal, further information emerged which suggested that Mr and Mrs D would be agreeable to some flexibility with regard to the financial package available. They had also reiterated their love for C and wish to be able to care for her. Emails were provided by the local authority which set out further conversations had with Mr and Mrs D on the point. The appeal court viewed this as further evidence that Mr and Mrs D were or could be a realistic option long-term foster care for C. In the court’s view, the very existence of these emails demonstrated that there was further information which could and should have been obtained before the judge discounted long-term foster care with the D’s as a realistic option.
The fact that further evidence came to light by virtue is simply asking further questions and initiating a proper dialogue is an important one. In this case, had Mother not appealed the first instance decision, there would exist a situation where a child would have theoretically been adopted when there remained a means for her to remain in her current placement long-term.
Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2022/930.html