Grandmother secures fresh hearing after Court of Appeal finds process that led to placement order deficient

An appeal from the Family Court at Liverpool must be allowed even though it would leave a boy aged two in a foster placement where he has already spent all his life, the Court of Appeal has ruled.

In D (A Child: Placement Order), Re [2022] EWCA Civ 896 Lord Justice Peter Jackson, sitting with Lady Justice King and Lord Justice Popplewell, said the Supreme Court in H-W (Children) [2022] UKSC 17 had underlined that a decision leading to adoption “requires the rigorous evaluation and comparison of all the realistic possibilities for a child's future in the light of the court's factual findings”. 

This meant adoption can only be approved where it is in the child's lifelong best interests and where the severe interference with the right to respect for family life is necessary and proportionate. 

Peter Jackson LJ said the question before him was whether a decision that a child could not be placed with his grandmother but should instead be placed for adoption was reached after such a rigorous evaluation and comparison.

The grandmother argued the process was deficient because the court did not fully evaluate the option of a placement with her, nor properly compare its advantages and disadvantages with adoption.

Peter Jackson LJ said: “The grandmother's argument is convincing…I would allow the appeal and remit her claim for a rehearing. In the light of the extreme delay that has already occurred, this is highly unfortunate, but given what is at stake it is unavoidable.” He gave no view about the likely outcome of the rehearing.

The grandmother has two daughters of which one, who lives some 50 miles away, has three children including B.

Both the mother and father are deaf and in 2019, care orders were made in respect of their two daughters, who were placed with their paternal grandparents. B was removed at birth and has since been in foster care.

In early 2020, following the removal of their daughters, the parents were convicted of child cruelty arising from their grossly inadequate home conditions.

Peter Jackson LJ noted other concerns that led to the care proceedings for B “centred on domestic abuse in the parents' relationship and their dishonesty with professionals”.

B's proceedings continued for 144 weeks up to the final order, with 29 orders being made. Difficulties were experienced with intermediaries, signing interpreters, illnesses and computer technology, and adjournments were granted for further assessments.

The grandmother offered to look after B from the outset. She was negatively assessed as a foster carer by the local authority in March 2020 because of concerns about her health, home conditions, smoking and the history of her own parenting.

But Peter Jackson LJ said: “By far the greater issue regarding the grandmother is her ability to protect B from his parents. There is no suggestion that either of B's parents would deliberately harm him but as a result of the court assessment of their parenting ability generally any exposure to the parents would put B at risk of emotional harm and maybe physical harm if he were to become caught up in one of their arguments as his half sibling was. I must therefore go on to assess the maternal grandmother's ability to protect.”

He said there were three strands to the grandmother's arguments: that some of the findings listed above were not justified by the evidence; that no balanced evaluation of her position was made; that the welfare implications for B of living with her were not compared with those of adoption.

The unnamed local authority involved accepted the original judgment did not address a number of relevant matters, but argued that the kernel of the decision was soundly based.

Peter Jackson LJ said: “There is real force in the argument that there were other matters that were not taken into account in evaluating the option of a placement with the grandmother.

“There was evidence of a more positive nature and there was the question of reduction and mitigation of risk.”

Because the judge had ruled out placement with the grandmother, he did not compare it meaningfully with the alternative plan for adoption.

Peter Jackson LJ concluded: “It is very concerning that B, who has spent all his young life in foster care, must now wait even longer for a decision. However, there is no alternative to allowing the appeal and I would remit the grandmother's claim for urgent rehearing by a judge nominated by the Family Division Liaison Judge.”

Mark Smulian