Council and guardian fail in appeal over refusal by judge of application for placement orders

The Court of Appeal has rejected appeals by a local authority and a children's guardian against a Family Court judge’s decision to refuse an application for placement orders in respect of two children.

In T and R, Re (Refusal of Placement Order) [2021] EWCA Civ 71 the mother and father were both from traveller backgrounds. HHJ Richards had observed in his first judgment that they were clearly and proudly part of the traveller community.

Between 2013 and 2018, the couple had six children, the first four of whom were girls, now aged 7, 6, 5 and 4, followed by the two children with whom the Court of Appeal was concerned, a boy, T, now aged 3 and a girl, R, aged 2.

Lord Justice Baker highlighted how this large sibling group was therefore notably close in age. He said it was a central feature of the parents' case that the close relationship between T and R and their older sisters was a strong argument against the proposal that they be placed for adoption.

The family had become known to social services after an altercation with neighbours following which they lost their home and moved into temporary and unsatisfactory accommodation. There was particular concern about the welfare of one of the older girls, C, who was found to be underweight and developmentally delayed.

In September 2018, shortly after R was born, the family was living in one room in a hotel. Later that month, C was examined in hospital where she was found to have sustained two metaphyseal fractures and was malnourished and neglected.

On 5 October 2018, the local authority started care proceedings in respect of all six children. Interim care orders were made and the children placed in foster care in three separate placements, with T and R being placed together with carers with whom they continue to reside and with whom they have formed a close attachment.

Following a series of case management hearings, a fact-finding hearing took place before HH Judge Richards over 15 days in September 2019.

In a lengthy reserved judgment delivered on 1 November 2019, the judge concluded that the parents had failed to give priority to C's needs and failed to maintain necessary and rigorous standards of hygiene for her.

HHJ Richards found that her fractures had been sustained as a result of one or other parent pulling or lifting her by the arms with sufficient force to cause the fractures. He was unable to determine which of the parents was responsible but was satisfied that there was a real possibility that either of them was the perpetrator.

In addition, the parents conceded, and the judge found, that there had been occasions during their relationship when the father had lost his temper and become aggressive and sometimes violent.

The judge accepted their evidence, however, that they remained in a close relationship which was supportive and respectful, and a reflection of their culture, upbringing and background. He was not satisfied that it was generally characterised by verbal arguments or abuse.

Following the fact-finding judgment, the judge made orders under Part 25 of the Family Procedure Rules for expert assessments by an independent social worker and a psychologist. The completion of those assessments was delayed following the onset of the Covid-19 pandemic and the final hearing did not take place until July 2020.

At that hearing, the local authority sought care orders in respect of all six children on the basis of care plans providing for long-term foster placements for the four older girls and adoption for T and R, in respect of whom they applied for placement orders under section 21 of the Adoption and Children Act 2002.

The parents argued for the return of the children to their care. They strongly opposed the proposal that the two younger children be placed for adoption.

The children's guardian supported the local authority's plan for all six children although she described the issue of adoption for the younger children as a finely-balanced decision.

In a reserved judgment delivered on 28 August 2020, the judge approved the care plans for the four older children and made them subject to full care orders. With regard to T and R, however he declined to endorse the local authority's plans for adoption and dismissed the application for placement orders.

The judge invited the local authority to reconsider its care plans for the younger children with a view to their remaining in long-term foster care. At a subsequent hearing on 21 September 2020, he refused applications by the local authority and guardian for permission to appeal against the dismissal of the placement order applications and directed that the children should remain in the interim care of the local authority pending any further application for permission to appeal to the Court of Appeal.

On 2 November 2020, permission to appeal was granted by Peter Jackson LJ on all grounds.

Rejecting the appeal of the local authority and the children’s guardian, Lord Justice Baker said: “The judge was presented with a consensus amongst all the professional witnesses that the best option for T and R was that they should be placed for adoption. Although Dr Hunnisett [a psychologist] and Ms Hayward [the independent social worker] had initially recommended a different outcome, by the conclusion of their evidence each had come round to accepting the local authority's position. The guardian's view was that the decision was finely balanced, but ultimately, she too supported that recommendation.

“The judge, however, reached a different conclusion. It was his view that this was not a case where adoption was the only option that would meet the children's needs. He concluded that adoption was not the best option and that in all the circumstances of this particular case it was long-term fostering that would meet the overall welfare needs of these young children. In my view, he was entitled to reach that conclusion and his exposition of his reasons was clear and convincing.”

The Court of Appeal judge added: “Like Mr Bagchi [counsel for the local authority], I detected in the judgment a sense of the judge's sympathy with the parents' position. Unlike Mr Bagchi, however, I do not consider that his sympathy for the parents improperly affected his judgment as to what was in the children's best interests.

“Any judge hearing care proceedings in which the care plan is for permanent separation of children from their birth family will inevitably be sympathetic to the plight of the parents facing the loss of their children. It is essential, however, that a judge in those circumstances maintains focus on the children's welfare as the paramount consideration. In this case, I am quite satisfied that Judge Richards maintained that focus at all times when reaching his decision.”

Baker LJ said the judge had carefully identified the options and the advantages and disadvantages of each, although it was “correct that he could have set out the advantages of adoption in more detail”.

Neither the local authority’s counsel nor the guardian’s counsel persuaded Lord Justice Baker that this was a case where the judge's reasoning was deficient because he overlooked a significant factor to be taken into account.

Lord Justice Baker added: “This is a case where the continuation of contact is a factor of particular importance. The advice of the psychologist, Dr Hunnisett, was that contact between the siblings throughout their childhood was central to the psychological development of the children. If the court did not make sure that contact between the six children continued it would risk damaging the psychological development of the whole sibling group. The adoption social worker, RA, was optimistic about the prospects of finding adopters who would be willing to accept ongoing sibling contact. Neither she nor anyone else could guarantee, however, that such adopters could be found nor that they would adhere to any commitment to contact.”

The Court of Appeal judge said that the judge’s conclusion as to the difficulty in guaranteeing that post-adoption contact would take place was one he was entitled to reach in the circumstances of the case.

Lord Justice Baker also highlighted the importance HHJ Richards had attached to continuing contact between T and R and their parents.

“One of his reasons for doing so was his conclusion that contact represented the best prospect of maintaining and nurturing the children's understanding of their cultural history and of their place in the world. His findings that T and R had a strong and real sense of belonging to this family and as to the central importance of their cultural heritage to all of the children, including the younger two, were plainly open to him on the evidence,” the Court of Appeal judge said.

“He reached the view that it would be difficult for the children to retain sufficient awareness of their heritage in an adoptive placement, in part (but not only) because of the strong opposition to adoption within the traveller community.”

HHJ Richards had – in reaching his decision that long-term fostering was the outcome that best met the children’s particular needs – provided clear and coherent reasons, including, as the law required, his reasons for departing from the recommendation of the guardian, Lord Justice Baker said. “It is not a decision with which this court should interfere.”

Lord Justice Males and Lord Justice Floyd agreed.