Court of Appeal dismisses appeal by council over refusal of application for placement order

A local authority has failed in an appeal against a Family Court judge’s decision to refuse an application for a placement order in respect of a young child.

The Court of Appeal concluded that the judge had carried out the “necessary analysis of the relevant factors in the welfare checklist and comparative weighing of the options”.

In N (Refusal of Placement Order) [2023] EWCA Civ 364, Lord Justice Baker said that the proceedings concern two children, N, who is rising 3, and her older half-sister, G, aged 8. The girls share the same mother but have different fathers.

The local authority's children's services became involved with the family because of a “number of concerns”, and following an investigation under s.47 of the Children Act 1989, the children were made subject to child protection plans, said Lord Justice Baker.

He noted that a police welfare check carried out in March 2022 found the children living in “dangerous and unhealthy conditions”.

Following this, the local authority started care proceedings and both girls were “made subject to interim care orders and placed together in foster care”, said Lord Justice Baker.

The local authority filed an application for a placement order under s.21 of the Adoption and Children Act 2002, in respect of N.

At a final hearing handed down on 25 November 2022, the judge made a child arrangements order providing for G to live with her father and a care order in respect of N, “on the basis that she would be placed in long-term foster care, either with the carer with whom she and G have been living since the start of proceedings or with another long-term carer”, said Lord Justice Baker.

The application for a placement order was dismissed.

One of the key considerations by the judge was that of sibling contact. In regard to N, HHJ Tolson KC said:

“The options for N come down to adoption or long-term fostering. Viewed at present it seems to me that long-term fostering is the better option. First, as indicated above, I doubt that a placement would be found which could tolerate on-going sibling contact. Secondly, the option of N remaining where she is at present is attractive.”

The decision under appeal was the refusal of the application made by the local authority for a placement order in respect of N.

The local authority advanced two grounds of appeal:

(1) the judge carried out an incorrect balancing exercise, and

(2) the judge carried out an incorrect implementation of the welfare checklist.

Lord Justice Baker said there was “a degree of overlap” between the two grounds, and therefore it would be convenient to consider them together.

The Court of Appeal judge noted that the principal point made on behalf of the appellant was that, whilst the sibling relationship was of importance to N, the weight given to it by the judge was “excessive”.

It was argued on behalf of the local authority that the balancing exercise “ought to have weighed a realistic evaluation of the benefit of such contact against the benefit to N of living in a secure and stable adoptive placement that was not subject to the uncertainties of being a looked after child”.

Lord Justice Baker said it was also argued that in evaluating the benefit of contact, the judge ought to have taken into account the evidence that the relationship, though important to N, was “less important to her than to her sister”.

Further, that he should have taken into account the fact that, “even if N was in foster care, the level of contact would be significantly less than it has been when the sisters have been living together.”

Martha Gray, on behalf of the first respondent, submitted that the judge had been required by statute to take into account G's wishes and feelings when reaching a decision whether to make a placement order in respect of her sister. Rightly, however, he had acknowledged that this was just one part of the analysis. It was Ms Gray’s submission that “reading the judgment as a whole, it could not be said that the judge had fallen into the trap of allowing G's strongly expressed wishes and feelings to dictate the outcome”.

Lord Justice Baker said that Ms Gray drew attention to the way in which the judge at paragraph 49 of the judgment had “expressly revisited his conclusions for each child in the light of his conclusions for the other”.

Discussing the appeal, Lord Justice Baker said that under s.1 (1) and (2) of the Adoption and Children Act 2002, whenever a court is coming to a decision relating to the adoption of a child (which include whether to make a placement order) the “paramount consideration must be the child's welfare throughout her life”.

He added: “The addition of the last three words distinguishes this principle from its equivalent in s.1 of the Children Act 1989, a distinction which is also reflected in the welfare checklist in s.1(4) of the 2002 Act which requires the court to have regard to the following matters among others”:

(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b) the child's particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,

(e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including –

(i) the likelihood of any such relationship continuing and the value to the child of doing so,

(ii) the ability and willingness, of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child."

Analysing the relevant legal framework, Lord Justice Baker said: “A child's existing relationships are obviously an important component of any analysis of her welfare ‘throughout life’. And a sibling relationship is a paradigm example because, unlike nearly every other relationship, it is likely to be lifelong.”

Lord Justice Baker noted that the role of the appellate court hearing an appeal against a judge's decision on such an application is, “first, to consider whether the judge's decision was sufficiently founded on the necessary analysis and comparative weighing of the options” and, “secondly, if it was, to determine whether the orders were necessary and proportionate”.

Considering the case under appeal, he said: “In the present case, the judge began by identifying the options. At an early point in the judgment, he succinctly reminded himself of the requirement to ‘consider the welfare analysis of all options globally and holistically, that is to say in the round and together’. His assessment was carried out by reference to the relevant factors in the welfare checklists. In embarking on his ultimate analysis, which he headed ‘The Balance’, he framed the question as being how to weigh the various factors he had identified within the checklists against each other in the context of the various options.”

Lord Justice Baker continued: “At the end of the judgment, he revisited his conclusions in respect of one child in the light of his conclusions in respect of the other. All these elements demonstrate that the judge was fully aware of the approach he was required to adopt.”

The Court of Appeal judge noted that although HHJ Tolson KC’s concluding section of the judgment does not set out the advantages and disadvantages of adoption and long-term fostering in a balance sheet, this is “not an imperative”.

Considering whether the judge identified the factors relevant to his decision, Lord Justice Baker said: “I am confident reading the judgment as a whole that the judge identified the factors relevant to his decision. He acknowledged the greater degree of permanence and security provided by adoption as opposed to fostering. He recognised that a foster placement involved ongoing professional involvement and the prospect of further moves of placement. It is true that he did not analyse these features at length, but they were certainly in his mind.”

Considering the council’s argument that the weight given to the importance of a sibling relationship by the judge was “excessive”, Lord Justice Baker said: “It is clear that the ‘magnetic factor’ in the judge's estimation was the importance of the sibling relationship. As he said in his response to the request for clarification, he concluded that the impact of the loss of G upon N was likely to be less than the loss of N upon G. Nevertheless, he found it to be of very great importance to N.”

He continued: “As Ms Gray submitted, he was entirely right under s.1(4)(f)(iii) of the 2002 Act to take into account G's wishes and feelings. Whilst describing it as ‘touching and troubling’, however, he accepted that it was ‘but one consideration’. The factor to which he attached particular and ultimately decisive weight was, under s.1(4)(f)(i), the value to N of the sibling relationship continuing.”

Considering the judge’s reasoning for choosing long-term fostering over adoption, Lord Justice Baker said: “It is unsurprising that the judge concluded that the level of sibling contact which N required could not be realistically achieved were she to be adopted. […] The evidence before him was that any requirement for sibling contact narrowed the pool of possible adopters. The requirement for contact on a scale necessary to meet N's interests would reduce the pool still further. In addition, prospective adopters would be discouraged by the fact that G would be having contact with her mother as well as with N so that the ‘usual seal’ between adoptive and birth families could not be maintained.”

He noted that “no sufficient thought had been given to this issue when the plan for adoption was prepared”.

Adding: “In those circumstances, the judge was entitled to conclude on the evidence that this was not a case where nothing else but adoption would do but, rather, that long-term fostering was the better option.”

On considering the other options identified for N, Lord Justice Baker said that although the judge did not refer in the concluding section of his judgment to two of the options he had identified at the outset – options (6) (approving the care plan for adoption whilst refusing to make a placement order) and (7) (making a placement order and an order for sibling contact under s.26 of the 2002 Act) – “they were effectively ruled out by his conclusion that the level of sibling contact which N required could not be realistically achieved were she to be adopted”.

Dismissing the appeal, Lord Justice Baker said: “I conclude that this is a case where the judge carried out the necessary analysis of the relevant factors in the welfare checklist and comparative weighing of the options. For my part, I see no basis on which this Court could properly say that he was wrong.”

Lady Justice Elisabeth Laing and Lord Justice Singh agreed.

In a message to the local authority, the Court of Appeal reminded it of its obligation to arrange sibling contact under the judge's order, as Lord Justice Baker was “concerned to be told” that no direct contact has taken place between the sisters since G moved to live with her father.

Lottie Winson