Family Court judge criticises local authority analysis as “deeply flawed”, finding council failed to apply ‘nothing else will do’ principle

The Family Court has dismissed a council’s application for care and placement orders, finding that the authority failed to properly apply the principle that adoption should only be sanctioned where “nothing else will do”, and that it failed to apply the relevant welfare checklist.

In D (A Child), In the Matter Off [2024] EWFC 396 (B) (27 November 2024) (date of judgment 27 November 2024, published on Bailii this week), HHJ Hickinbottom dismissed the council’s application for care and placement orders and granted the boy’s present foster carers a special guardianship order.

The case concerned D, a boy under two.

D's mother is white British and his father is a Bengali Muslim. D has older half-siblings who he was living with until he went into care in July 2023.

Mr and Mrs E have been D's foster carers since August 2023. Prior to the hearing, they made an application for a special guardianship order (SGO) for D.

The local authority, Bradford Council, did not support D remaining in the care of Mr and Mrs E in the longer term either by way of SGO or adoption – and sought care and placement orders with a plan to place him for adoption.

The judge noted that the parents accepted they could not care for D, and that they supported the application of Mr and Mrs E, alongside the Guardian – who was “highly critical” of the council’s conduct.

HHJ Hickinbottom added: “The issue in dispute for the Court to determine is whether it is in D's welfare interests that D should remain in the care of Mr and Mrs E subject to an SGO, or whether he should be made subject to care and placement orders with a plan that he is ultimately moved from the care of Mr and Mrs E to an adoptive placement.”

Outlining the parties’ submissions, the judge noted that the council’s position had three strands: Mr and Mrs E's “vulnerabilities” as foster carers; D's religious and cultural needs; and D's need for long term permanence.

By contrast, the Guardian submitted that it “cannot be said” that nothing else will do for D, as there is an option for D that allows him to be cared for by excellent carers who he has an attachment to; and who love him.

“Conversely, her evidence is that if D was to be removed from the care of Mr and Mrs E he will likely to be caused significant emotional harm,” said the judge.

On the issue of D’s religious and cultural needs, HHJ Hickinbottom observed: “Despite the Mother's expressed wish for D to be raised a Muslim, and even though the Father is from Bangladesh and Muslim (and so from a different cultural background to Mr and Mr E), they both wish for him to be cared for by Mr and Mrs E.

“This is a further consideration that should carry at least some weight in the welfare analysis, and it is crucial to balance this against the cultural factors. Bradford MDC appear to have elevated the cultural factors in part on the basis that the Mother has said that she wants D to be raised a Muslim, but that should not be seen in isolation because she also wants him to remain with Mr and Mrs E in the knowledge that they are not Muslims.”

Discussing the case as a whole, the judge described the local authority’s analysis to be “deeply flawed”.

She said: “They [Bradford] have taken a view about the primacy of D's cultural needs and given insufficient and in some cases no weight to the many other factors that are highly relevant to D's welfare throughout his life including the harm that D would be caused by removing him from the care of Mr and Mrs E. They have failed to properly apply the principle that adoption should only be sanctioned where nothing else will do. They have failed to apply the relevant welfare checklist. The local authority not performing a proper analysis or getting the balance wrong is one thing, however, it is another matter to act in a way that is not transparent or fair.”

She added: “In my judgment in this case Bradford MDC has neither been transparent nor fair. If the special guardianship order (SGO) assessment was thought not to be robust enough, then the social worker should have explored any criticisms with Mr and Mrs E before adding them into the second report. However, it was evident that not only was the social worker's initial analysis appropriate and correct in its conclusion, but there was also no omission or lack of robustness in the SGO report.”

Dismissing the council’s application for care and placement orders, HHJ Hickinbottom said: “Placements of children outside of their birth family are never ideal and it has to be acknowledged in this case that despite the best efforts of Mr and Mrs E they are not his birth family, nor can they ever fully reflect his heritage. However, they do have a lot to offer D. They already know and love him. The evidence of the social worker is that they provide him with excellent care. They are committed to supporting D and to understanding his heritage and culture. They are supportive of him having relationships with his birth family as and when that is right for him.

“The concerns for the stability of this placement in so far as Bradford MDC continue to rely on them are not in my judgment significant. Mr and Mrs E have addressed any issues and present as high-quality carers committed to D and committed to ensuring that they put themselves in the best position to care for him. There is not in my judgment any higher a likelihood that this placement will break down than there would be in a hypothetical adoptive placement. In many ways the placement with Mr and Mrs E is likely to be more resilient due to their experience as carers, their commitment to growth and their existing bond and knowledge of D. This is not a case where nothing else will do.”

She continued: “I am satisfied having weighed all the relevant factors that the making of care and placement orders is neither necessary nor proportionate. It is evidently an unnecessary interference with the parents' and D's Article 8 rights when not only is there another realistic option for D, but where in all the circumstances there is a better plan for D.

“Looking at this case holistically and balancing all the relevant factors in the welfare checklist, D remaining with Mr and Mrs E is overwhelmingly in his best interests both now and throughout his life. Both parents support an SGO being made, and it is clear given the assessment of the Mother, and the Father's lack of any real engagement that no less interventionist order will do for D. D requires the permanence of an SGO and the enhanced parental responsibility it will give to Mr and Mrs E.”

The judge dismissed the local authority’s application for care and placement orders and granted Mr and Mrs E a special guardianship order in favour of D.

Lottie Winson