Judges reject challenge over adoption and special guardianship for half-brothers

The Court of Appeal has dismissed a case brought against Wirral Metropolitan Borough Council over whether a child should be adopted when his older half-brothers, who lived with the same couple, were to be the subject of a special guardianship order.

Lord Justice Peter Jackson said in his judgment that a recorder had been entitled to reach the decisions she did.

The case concerned 18 months old ‘Liam’ who has lived since birth with his cousins 'Mr and Mrs Smith', and two maternal half-brothers.

It was not disputed that they three boys would remain living with the Smiths for the rest of their childhoods, nor that a special guardianship order was made in respect of the two older boys.

But there was disagreement over whether Liam should have special guardianship or be adopted.

The guardian for all three children argued for special guardianship so all three would be treated alike.

Recorder Harris-Short heard evidence from the Wirral social worker concerned and the guardian and made a care order and a placement order for Liam so that he could be adopted by the Smiths.

The guardian appealed arguing that the recorder and social worker started with a preconceived notion in favour of adoption and treated a special guardianship order as not only a lesser order but also a less good order.

They said these attitudes led the recorder to exaggerate the security provided by adoption, when there was no external threat to Liam's family life with the Smiths, and to undervalue the loss to Liam of changing his legal status. 

Giving judgment in T (A Child: Adoption or Special Guardianship), Re [2017] EWCA Civ 1797 Lord Justice Peter Jackson said: “I can understand why the arguments advanced by the guardian led to permission to appeal being granted.

“On the somewhat unusual facts, it seems to me that there were respectable arguments to be made for either form of order, and that the outcome did not essentially depend upon approval of one professional witness or criticism of the other.”

He said the case turned on the weight to be accorded to different factors and the recorder had been “entitled to view the enhanced security of adoption as being precious to Liam and to Mr and Mrs Smith.

“Overall, faced with a choice between two options that each had advantages and disadvantages, the recorder reached a clear and fully-reasoned decision,” the judge said.

“Even if the choice facing her was somewhat more finely-balanced than her judgment might suggest, her conclusion fell well within the powers that were hers to exercise.”

Agreeing, Lord Justice MacFarlane set out why he considered that the Recorder's order "was not only not 'wrong', but was, indeed, the right order for this young child".

He said: "The distinction in status, as between the three boys, that is created by the Recorder's order is, in my view, fully justified for the reasons that are spelled out so clearly in her judgment. Simon and Stephen have a live and active relationship with one of their parents, whereas Liam does not, never has had and is unlikely to have in the future.

"Liam's need for a full, life-long, parental relationship, in legal terms, with Mr and Mrs Smith is therefore a need of an altogether different order to that of his two half-siblings. I would therefore go further than My Lord in holding that the Recorder was right to prioritise this need, which could only be satisfied by the making of an adoption order, despite the skewing of the legal relationship that Liam has with his half-brothers that adoption would cause."

Mark Smulian