Court of Appeal judge allows appeal and makes placement order, praises “model note” on adoption versus long-term fostering provided by local authority counsel

The Court of Appeal has allowed a local authority’s appeal against a judge’s decision to refuse to make an order allowing an 11-month-old child to be placed for adoption, finding that he “did not take the correct legal approach”.

In D-S (A Child: Adoption or Fostering), Re [2024] EWCA Civ 948, Lord Justice Peter Jackson said: “There is no rule that very young children who cannot live at home must always be adopted. However, the advantages of adoption for C, at her age, were obvious. They did not automatically predominate, but they were a powerful consideration that had to be recognised. Unfortunately, they did not feature in the judge’s analysis.”

The case concerned C, an 11-month-old girl. C’s mother has two other children - K, a girl aged 10, and J, a boy aged 5. They do not have the same father as each other or as C but, since J was born, he and K have always been together, Peter Jackson LJ noted.

Both of C’s parents have learning difficulties.

The proceedings began when C was born in May 2023. She went home from hospital for a few days, then she and her mother spent two weeks in a foster placement before going to a residential assessment centre.

A week later, the father and the other children joined them. However, it didn’t work out. The father left after a month. The mother and children stayed on, but the assessment was negative.

Peter Jackson LJ said: “No one has ever suggested that the parents would deliberately harm the children, but they simply couldn’t give any of them the care they need.”

In November 2023, the court approved the older children going to one foster home and C, who was then just six months old, going to another.

In December 2023, the local authority issued an application for an order allowing it to place C for adoption.

Peter Jackson LJ clarified: “This appeal is not about K and J. The plan is that they will stay together in foster care and have contact with their parents. They cannot stay where they are, so a long-term placement needs to be found for them.”

The final hearing took place before HHJ Tolson KC over three days in April 2024.

He found that the parents could not look after the children well enough now or in future, and he made three care orders. He agreed with the plan for K and J to stay in foster care, but he refused the application for a placement order for C, and he refused permission to appeal.

HHJ Tolson said in his judgment: “Applying the Welfare Checklist within section 1 of the 2002 Act, it seems to me that it would be in C’s best interests to search for a long-term foster placement. Certainly, I am not in a position, whether as a result of professional evidence or my own analysis to say, as I would have to do, that nothing else will do in this case. Consequently, I refuse the application for a placement order. I have considered whether I should simply adjourn it to allow, for example, for evidence of long-term foster placements and so forth because there is no evidence of placement availability before me. However, it seems to me that that would not be desirable.”

The local authority appealed to the Court of Appeal, supported by the Guardian, and permission was granted on 24 June.

Summarising his ruling, Peter Jackson LJ said he would allow the appeal and set aside the judge’s decision for a number of reasons. “He did not take the correct legal approach. He was wrong to say that the professional assessments had fallen short. He needed to make an all-round assessment of C’s welfare, but he gave little or no weight to matters that were clearly important and he was influenced by matters that were not. His explanation of why he reached his decision is hard to follow.”

Peter Jackson LJ said the Court of Appeal would not order another hearing. “The facts are not disputed and the arguments are all known to this court. This is a case where there is only one plan that will work for C. There would be no point in another hearing, and it would cause months of delay at a crucial stage in C’s development when she needs to be bonding with new carers. We will make a placement order on the basis of the local authority’s plan, which aims for there to be some contact before and after adoption. We will not make a contact order, because that might complicate the search for adopters, which must be the priority.”

He added: “I fully recognise the huge benefits that many children get from good foster homes, but fostering is just not right for C.

“I know that this outcome will be painful for the parents, who have done their best, and I am sorry that their hopes will have been raised. Our decision will also be sad for K and J. But C’s needs must come first. The parents have done their best but they cannot give her a family life. The arguments in favour of keeping her in foster care throughout her childhood are weak. C needs a family of her own and the only way she can have that is by being adopted.”

Setting out the reasons for the Court of Appeal’s decision in legal terms, Peter Jackson LJ – amongst other things – examined a note on the law regarding long-term fostering and adoption provided to the judge by Sian Cox, counsel then acting for the local authority.

He described the note as “a model of its kind”, because it focused on the key legal issue that the judge had to decide. The Court of Appeal judge then, “unusually”, set it out in full (at paragraph 21) because it dealt with so many of the points that the judge should have addressed and which arose on appeal.

Peter Jackson LJ concluded that:

• He could not see that there was anything deficient in the professional analysis.
• He accepted that the professional reports “could have spelled out in somewhat greater detail why the witnesses considered that long-term fostering was a non-starter for C, but their essential point was clear”.
• The judge was wrong to find that there was a gap in the evidence, or a flaw in the professionals’ approach to it.
• The judge did not structure his judgment with reference to the welfare checklist. “That is not mandatory, provided the court’s thinking comes through clearly in some other way. Here, I do not think that it does. On my reading, the judge appears to have considered that the predominant welfare factor was the benefit to C of her parents and half-siblings being a regular presence in her life.”
• There is no rule that very young children who cannot live at home must always be adopted. However, the advantages of adoption for C, at her age, were obvious.
• He agreed that the extempore judgment should be read benevolently and as a whole. “But the errors I have identified are manifest. We cannot conclude that the welfare assessment had the necessary balance and thoroughness.”

Making his own welfare evaluation, Peter Jackson LJ said: “The dominant feature of C’s present situation is, in my view, her particular needs at her very young age. At the heart of the matter, she needs a lifelong family where she can feel that she belongs. I agree with the professional assessment of Ms R and Mr B that this can only happen through adoption.

“Spending a whole childhood in foster care is absolutely not the same, even if good and permanent carers could be found. The reason why long-term fostering was not looked at more closely by the professionals was because it was obviously a very poor plan for C’s future. Even if the parents and foster parents do their best, it is an insecure plan for C’s childhood, and if she was to experience multiple placements, she would be at real risk of suffering irreparable harm.”

Peter Jackson LJ allowed the local authority’s appeal and set aside the judge’s order.

He added: “Taking everything into account, I am in no doubt that this is a case, such as Re Y, where this court is in a position to determine the application for a placement order, and that it is strongly in C’s interests that we should do so.”

He made a placement order in relation to C.

Lord Justice William Davis and Lord Justice Snowden agreed.

Lottie Winson