A (Children : Adoption : long Term Foster Care), Re [2015] EWCA Civ 1021

[2015] EWCA Civ 1021

Case No B4/2015/1656

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY COURT, MIDDLESBROUGH

HHJ MATTHEWS QC

2015/1656

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/10/2015

Before

LORD JUSTICE LONGMORE

LORD JUSTICE RICHARDS

LORD JUSTICE McCOMBE

Between

H Borough CouncilAppellant

CDPRespondents

MARespondent

RDRespondent

– (9) T, F, D, P, M and HRespondent

In the Matter of A (Children)(Adoption/Long Term Foster Care)

Alex Verdan QC (instructed by Hartlepool BC, Legal Division) for Appellant

Janet Bazley QC, Catherine Fagan and Jackie McKie (instructed by Donnelly McArdle Adamson Solicitors and TMJ Solicitors) for First and Second Respondents

Catherine Jenkins (instructed by Tilly, Bailey and Irvine LLP) for Third Respondent

Kester Armstrong (instructed by Appleby, Hope and Matthews) for Fourth to Ninth Respondents (by their Guardian)

Hearing Hearing date: 16 September 2015

Judgment

Lord Justice McCombe:

[1]At the conclusion of the hearing on 16 September 2015 we announced our decision that this appeal would be dismissed and we ordered accordingly. We said that the reasons for that decision would be given in writing. This judgment sets out my reasons for the decision taken.

[2]This was an appeal by a Local Authority, H Borough Council (“the LA”) from the order of the Family Court at Middlesbrough (HH Judge Matthews QC) of 1 May 2015, made in care proceedings, whereby the court refused the LA’s applications for final care orders (based upon care plans for adoption and placement orders) in respect of three children P (a girl), M (a girl) and H (a boy) (aged respectively 6, 5 and 3 years old). The orders were made on 1 May 2015, following a hearing on 22, 23 and 30 April 2015. The judge refused permission to appeal to this court. Permission to appeal was granted by King LJ on 2 July 2015.

[3]The three children concerned are the three younger children of the First and Second Respondents (“the Mother” and “the Father” respectively). The three elder children of those parents are the Fourth to Sixth Respondents, T (a girl), F (a girl) and D (a boy). T is aged 13; F is 12 and D is 10. The Third Respondent (“RD”) is a family friend with whom, for a time during these proceedings, all six children resided and with whom T and D still reside.

[4]The issue on the appeal was whether the judge was wrong to conclude that long term foster care for P, M and H was to be preferred to the adoption favoured by the LA. The parents did not pursue in this court their argument that all the children should be returned to them at this stage. They did not, however, abandon the aspiration for the family to be re-united in due course. On that matter, I do not express any view.

(B) Background Facts

[5]The LA first became involved in the affairs of this family in 2008. It identified concerns related to the parents’ drug misuse, poor home conditions and consequent neglect of the children’s well-being. T, F and D first became the subjects of child protection plans which were discontinued in 2009 in the light of progress made in addressing the family problems. Unfortunately, conditions deteriorated once more by 2011 and, the judge observed, there was a lack of “routine and boundaries” in the children’s lives; medical appointments were missed and school attendance was poor. The Mother had mental health problems which impacted on her ability to provide proper care. Those problems, the judge observed, remained untreated at the time of hearing before her. As result of this ongoing deterioration of domestic conditions, these proceedings were initiated on 8 April 2014, but the children remained living with the parents until the making of interim care orders on 13 June 2014. At that stage, unopposed by the parents, the children were placed with RD, with provision for unsupervised contact. Unsupervised contact has continued throughout. While RD applied in July 2014 for a special guardianship order in her favour, by August 2014 she was struggling (as the judge said, not unsurprisingly and through no fault of hers) to care for all six children. By order of the District Judge of 12 September 2014, the younger three children were removed into the foster care of Mr and Mrs G. There was a proposal at that stage for the assessment of paternal grandfather (“PGF”) as a potential carer for all the children and he was a respondent to the applications before the judge. However, for reasons which do not need further explanation, that proposal for the children to go into the care of the PGF came to nought and he has played no part in this appeal, although he was named as a respondent in the Appellant’s Notice.

[6]The initial care plans for the younger three children in the case proposed assessment of the PGF or adoption, with monthly contact for all and, if they were placed with adopters, with indirect contact for the parents and contact for the siblings three times a year. By her first report the Guardian recommended long term foster care. It was originally envisaged that a final hearing of the care proceedings would begin on 17 November 2014, but that was ineffective and the matter was re-listed for 3 February 2015. A further care plan for the three younger children (of 1 December 2014) proposed adoption with thrice yearly contact with the siblings and indirect contact with the parents. By a further report of 5 December 2014, the Guardian maintained her recommendation for long term foster care. On 23 January 2015 the LA issued its applications for placement orders in respect of the three younger children and on 2 February 2015 the Guardian revised her recommendation from one of long-term foster care to adoption for P, M and H, but with a “twin track” approach directed to finding, if necessary, a long term foster placement as a fall back.

[7]The final hearing which had been set for 3-4 February 2015 also proved to be ineffective and, in due course, a new date was set (for an estimated two days) beginning on 22 April 2015. It was on that date that the case came on for hearing before Judge Matthews QC. It was accepted on behalf of the parents at that hearing that the “threshold” criteria under the Children Act 1989 had been satisfied, essentially by virtue of the history of intermittent neglect of all six children by the parents, as already summarised earlier in this judgment. The parents did not contest the making of care orders in respect of the three elder children or the arrangements for their care. However, they continued to argue for the return to them of the three younger children, alternatively for those children to be cared for by the PGF.

[8]By amended care plans of 23 April 2015, the second day of the hearing and after the LA social worker gave evidence, the LA sought care orders in respect of the elder three children on the basis of long term foster placements, with RD for T and D and with another foster parent for F. For the three younger children, the LA sought care and placement orders with care plans providing for a 12 month exclusive search for adoptive placement, to include contact with the elder siblings three times per year but with placement being given priority over contact.

[9]It appears that during closing submissions before the judge on 30 April 2015 the LA informed the parties and the court that it would further amend the plans to limit the exclusive search for an adoptive placement to 6 months, with a search for foster placement thereafter. It was not clear whether it was intended that this second period of search for foster placement was to be for that type of placement alone or coupled with a continuing search for adopters.

[10]The judge delivered her judgment on 1 May 2015 refusing the applications for placement orders in respect of P, M and H. The case was listed for further hearing on 15 May, with directions for revised care plans to be submitted by 13 May. The interim care orders were directed to continue in the meantime. On 13 May further amended care plans for the three younger children were submitted, again directed primarily to the adoption course rejected by the judge in her judgment, but identifying work and support for the children towards the adoption process, the absence of which had been noted in the judgment. The LA proposed a search for six months, limited to adopters committed to sibling contact, on a “twin track” basis with long term foster care, with a reversion after that period to long term foster care only. It was acknowledged that if the search identified both foster placement and adoptive placement the LA would consider carefully which alternative best met the children’s needs.

[11]At the hearing of 15 May 2015, the LA indicated a desire to have time to consider an appeal against the judge’s decision of 1 May 2015. As we were told by counsel before us, however, no submissions were made by the parties directed to the new care plans that had been lodged. A further hearing was fixed for 21 May 2015. As already indicated, at that hearing, the judge refused permission to appeal, having heard oral submissions. The Appellant’s Notice was then issued on 22 May, with permission being granted by King LJ on 2 July. The Appellant’s Notice directed a challenge to the judge’s judgment and order of 1 May, although Mr Verdan QC for the LA, both in written and oral argument, sought to challenge the judge’s failure to act upon the revised care plans of 13 May. This was opposed by Ms Bazley QC for the parents. However, for reasons that will appear, it did not seem to me that the somewhat altered focus in these new plans affected the outcome of the appeal which would be the same whichever of the alternative plans were advanced by the LA.

[12]Applications were subsequently made by the Guardian (11 September 2015) and by the LA (14 September 2015) to adduce fresh evidence as to events arising out of the breakdown of the foster placement of P, M and H in July 2015. I will return to what the fresh evidence revealed, and the consequences of it, after setting out next what the judge decided in her judgment.

(C) Judge Matthews’ judgment of 1 May 2015

[13]The judge rejected the parents’ case for the return of P, M and H to them and also rejected the alternative of a placement with the PGF. Neither of those cases is pursued on this appeal and it is not necessary to say more about them. As the judge said at paragraph 56 of her judgment, the only realistic options for the court to consider in respect of P, M and H were long term foster care or adoption.

[14]So far as the relevant law was concerned the judge said this in paragraphs 57 to 60 of the judgment: “57. In terms of making findings of fact in this case I apply the civil standard of proof being the balance of probabilities. In terms of assessing the applications before the court, no one addressed the law, but I anticipate that there was no dispute as to the principles which I have to apply. It is for the local authority to prove on a balance of probability the facts upon which they seek to rely. It is for the local authority since it is seeking to have the three youngest children adopted to establish that nothing else will do. - Re B (A Child) (Care Proceedings: Threshold Criteria)

[2013] UKSC 33

; - Re BS (Children) (Adoption

[15]In paragraphs 62 and 63 of the judgment, the judge addressed the “balance sheet” of advantages and disadvantages for the children under each of the possible options as set out in an appendix to the witness statement of the LA social worker. The judge recites the reasons why the social worker supported the adoption option: the prospect of long term stability which it was considered was more likely to be achieved than in a long term foster placement; fostering presented the prospect of multiple moves and continuing reviews, education plans, assessments, social worker and Independent Reviewing Officer involvement. All of this, the social worker urged, would be detrimentally intrusive in the children’s lives in a search for a permanent placement for them. There would also remain the continuing possibility of renewed applications to the courts by the parents. The social worker, therefore, considered that the possibility of a settled adoptive family should be taken up and that the possibility of finding such a family was realistic in the LA’s experience. The judge recited that she had read the statements of the LA’s “Family Finder” which did indeed support the view that an adoptive family might be found.

[16]The judge recorded the views of P and M (so far as known). P wanted to stay with the existing carers and M wished to return to the parents. However, as the judge noted, M had demonstrated that she could settle with carers who met her needs, notwithstanding her demonstration of wanting to return to her mother and father.

The judge referred to two passages from the Guardian’s report of 2 February 2015, as follows:

“I am of the view that P, M and H should be provided with the opportunity of adoption as the only suitable option at this time. This will enable the children the best possible chance of stability throughout their childhood and will protect them from the continual uncertainty and unstable lifestyles of T, F and D. I am of the view that the local authority need to provide the court with further information in relation to what work they will undertake with the children to prepare them for a plan of adoption. P and M have a strong bond and attachment to their parents and therefore it is not known at this stage how they will respond in transferring their attachment to new parents. ... I am also of the view that a twin track plan is pursued to enable potential permanent foster carers to be identified in the event that adoption is not achievable. And she says at the conclusion of that report; The local authority needs to set out their proposals for preparing the children for adoption, timescales in which they will seek prospective adopters and their plan for twin tracking in the event that appropriate adopters are not found.”

[18]While not criticising the LA, the judge took the view that there was lack of clarity over its planning with regard to adoption, a view supported by the shift of the LA’s proposal from a 12 month search to a six month one. She said that this caused her “to lack some confidence in the approach of the local authority”. The judge then noted that the Guardian regarded the decision as a finely balanced one and she stated that the six children were a close sibling group and recorded that the LA recognised that the three younger children should be kept together. Having referred to the LA’s recognition of the strong bond between the two groups of three children, the judge said that the care planning (as submitted on the morning of the judgment) was for sibling contact weekly until the identification of potential adopters. The judge went on to say this:

“78. This is a most unusual care plan in my experience. Once a placement is identified i.e the adoptive placement the care plan proposes that the contact will reduce to fortnightly and again then to monthly until placed. I am rather puzzled by that, I do not know how long a gap the local authority are anticipating between identifying adopters for these children and then placing them, but in my experience the gap is usually very short indeed. 79. It would take a very brutal reduction from weekly contact to monthly contact, then to three times per annum. I do not think that has been very well thought through. I appreciate the LA has produced statements in relation to family finding but I am not clear in my own mind what family the local authority are going to be able to identify who will be prepared to take three siblings together who are having weekly sibling contact. That is obviously a clear signpost that the relationship between the three youngest and the three eldest is considered to be strong and meaningful.”

A little later

the judge continued:

“80. ... I am not satisfied that P and M will necessary settle easily into an adoptive placement, just because they successfully moved into a foster placement when they were having ongoing regular weekly contact with their siblings and their parents does not mean to say that they will settle easily into an adoptive placement where they do not see their parents at all and they see their siblings, potentially, once every four months or so. 81. I am not clear what work the local authority are going to do to prepare them. The usual plan of young children being offered an opportunity to be placed for adoption is not necessarily the right plan for these children. The panacea of adoption does not suit all families and all children. Every case turns on its facts. 82. I am not satisfied that nothing other than adoption is necessary here. In my judgment it is too draconian for these children. I do not know how P and M are going to react to being told that the plan for them is a forever family, never seeing their parents potentially, and only seeing their siblings three times per annum. They do not know about this at present. I cannot be confident, nor can the local authority that adopters, whatever they say when they want to put themselves forward for these three lovely children, will actually maintain that post adoption.”

[19]The essence of the judge’s conclusion that adoption was not the right course here can be found in paragraphs 84 to 86 of the judgment in these terms: “84. The local authority’s initial proposals were that the children might wait another 12 months before a family was found to them, and that was the minimum in my expectation and experience. To try for six months is admirable but not realistic in my judgment. I deal with adoptions and I rarely see children placed with adopters within six months, even babies. Local authorities make bold promises when they want the court to grant placement orders.85. Sometimes the court has no choice than to place children for adoption because there are no other options. If these children did not have three elder siblings and such strong family bonds the court I may have taken a different view but I cannot be confident necessarily that these 2 elder children will settle. I am sure H will because he is young, and I have the negative aspects of long term foster care fully to the forefront of my mind in making this decision.

86. Will inter sibling contact happen? I do not know. Will the children settle? I do not know that either. I have to say that a breakdown of an adoptive placement for any one of those three children, but most particularly for the elder two girls would be disastrous, absolutely disastrous, and I do not know what view the local authority would take if that happened. I have seen children in multiple sibling adoptions where it has gone wrong for one of them, and one has remained in the placement and another has been effectively rejected and had to be placed in long term foster care.

(D) The grounds of appeal

[20]In its grounds of appeal the LA argued that the judge attached insufficient weight to the advantages of adoption and was wrong to conclude that adoption was not in the best interests of the three children in issue. Perhaps foremost in the six examples of this, as given in the grounds, was the argument that the judge failed to have proper regard to the need for a permanent placement and the likely achievement of this (on the LA’s case) within 6 months, while maintaining sibling contact. In contrast, it was said the judge failed to attach proper weight to the higher breakdown rate in foster care, as opposed to adoption, the lower likelihood of achieving a placement of all three children in foster care and the higher level of local authority intervention in an ongoing foster care arrangement. Further it was argued that the judge placed too much emphasis on inter-sibling contact (as opposed to the need for permanent placement) and upon the risk of adoptive placement breakdown. (E). The fresh evidence, events post-judgment and the parties’ current positions

[21]As indicated above, applications to admit fresh evidence were made by the Guardian and the LA. We indicated at the outset that we would receive the new evidence, but reserved our view as to whether it should be formally admitted on the appeal. For my part, I would wish to emphasise that applications for fresh evidence are not to be encouraged. In the vast majority of cases the review of a judge’s order should be based upon the materials that were before him or her.

[22]The primary new fact that emerged from this material was that the previously existing foster placement of P, M and H had broken down and, to summarise a more complex decision making process by the Guardian (set out more fully in Mr Armstrong’s written and oral arguments on her behalf), this breakdown had led the Guardian to change her view as to the more desirable of the two possible options for these children. It was indicated that the Guardian no longer supported the LA’s appeal. As Mr Armstrong said to us, while the Guardian maintained her entire independence from other parties, in the interests of the children, she now aligned herself with the position of Ms Bazley who sought the dismissal of the appeal on behalf of the parents.

(F) The arguments and my conclusions

[23]In his skeleton argument for the LA, Mr Verdan (then with the assistance of Mr Hall, who appeared before the judge but did not appear before us) submitted that the appeal raised “a very important issue relating to the court securing permanence for young children who cannot be cared for by their family and whether they should be given a chance to be adopted”. He submitted that the judge’s decision not to make care orders and to approve the LA’s care plans was wrong. He said that in spite of the fine balance spoken of, the only proper answer was adoption. The decision to the contrary had been highly unusual.

[24]He told us that, following the Guardian’s change of position, the LA had given anxious consideration as to whether the appeal should be pursued, but had decided that it should do so. In particular, it had had regard to the opportunity that it saw to achieve permanence for the children by the chance of adoption and the non-acceptance of the need for that permanence on the part of the parents, which it saw as an additional risk factor. Mr Verdan identified the key issues as being the importance of sibling contact (seen by all to be desirable) and the question of the duration of any search for a placement. He told us that the LA accepted that this was a difficult appeal for it to advance. Further, he told us that, if our decision was to uphold the judge’s decision, the LA would re-draft the care plans to provide for long term foster care.

[25]So far as the law was concerned, Mr Verdan had three points. First, he questioned whether the judge had properly applied a dictum of Baroness Hale of Richmond in her dissenting judgment in Re B

[2013] UKSC 33

where her Ladyship said this:

“198. ... it is quite clear that the test for severing the relationship between parent and child is very strict; only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34, ‘intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.’”

Mr Verdan submitted, with reference to this one short paragraph, that the strictness of the test for severing the relationship of parent with child was not being applied to a sibling relationship as, he submitted, the judge improperly thought. Secondly, Mr Verdan submitted that the judge, while referring to the welfare checklist, did not say how she applied it, having due regard to the need for permanence in a child’s life. Thirdly, he argued that the judge did not mention the children’s right to a stable, secure and permanent family life. ‘intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.’”

[26]Mr Verdan also referred us to two passages in the judgment of Black LJ in Re V (Children)

[2013] EWCA Civ 913

at [8] and [96], in the latter of which she set out some of the material differences between arrangements for foster care and adoption respectively. In my judgment, it is important to note the context of the remarks and what was said at [95] of the same judgment. The relevant paragraphs are as follows:

“95 ... The Judge thought she may have been given a rosy tinted view of adoption and not told that long term fostering could provide the same security. My difficulty with that is that I do not think that fostering and adoption can in fact, be equated in terms of what they offer by way of security. I do not intend to embark on a comprehensive comparison of the two arrangements, merely to highlight some of the material differences. What I say should not be taken as a substitute for professional advice to the court from social services and/or the guardian in any case in which this is a significant issue. 96. With that caveat, I make the following observations: i) Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to “feel” different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement. ii) Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time. iii) Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989). The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need leave before they can apply for contact. iv) Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).”

As my Lord, Longmore LJ (who was a member of the court in that case) observed in argument before us, the parental influence in V had been strongly negative. Moreover, in V no issue of sibling relationships arose. i) Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to “feel” different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement. ii) Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time. iii) Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989). The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need leave before they can apply for contact. iv) Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).”

[27]On the facts of the case, Mr Verdan submitted that, even if not expressly stated, the judge was ruling out rehabilitation of these children with their parents. He also submitted that, in its post-judgment care plans at least, the LA had responded to the strong point that had emerged at the hearing as to the strength of the sibling bond and the desirability of maintaining it so far as practicable. He said that, after judgment, the LA had “firmed up” its view on sibling contact and its furtherance and that the judge had not taken this into account. He argued that that there was a real advantage in the permanence of adoption and that, on the evidence, the LA’s “track record” of successful adoptions of sibling groups had been good. Mr Verdan pointed to the judge’s comment in the last two lines of paragraph 69 of her judgment where she said, “I am sure that long term foster carers [as well as adoptive parents] would also be willing and motivated to meet all of their [the children’s] physical and emotional needs… ”. He submitted that this missed the point in that such willingness could not meet the “deep, psychological and emotional need for permanence”.

[28]It is right indeed, as Ms Bazley pointed out, that this appeal is against the judge’s order of 1 May 2015. Final submissions had been made on 30 April 2015 and there was no invitation made to the judge to consider further care plans, produced post-judgment, upon which Mr Verdan sought to rely in his submissions. The further hearing on 21 May 2015 was, we were told, confined to submissions upon the application by the LA for permission to appeal. For my part, I agree that it is difficult for the LA to challenge the judge’s reasoned judgment of 1 May 2015 by reference to material produced later, in particular when no submissions had been directed in the light of that material. It is clear that by her order of 1 May the judge had envisaged that the LA would produce revised plans reflecting her decision that the children should go into long term foster care. As she recognised in one of her two orders of 21 May 2105 (1/30-31 in the bundles before us), the LA had not done this and merely sought permission to appeal.

[29]In contrast to Mr Verdan’s submissions with regard to the paragraph of Baroness Hale’s judgment in B (supra), Ms Bazley referred us to [33] – [34] of Lord Wilson’s judgment in the same case. I refer only to [33] as follows:

“33. In a number of its judgments the European Court of Human Rights, “the ECtHR”, has spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. Only a year ago, in YC v United Kingdom (2012) 55 EHRR 967, it said: ‘134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child’s best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained.’ Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them.”

Ms Bazley directed our attention to the European Court’s statement in the YC case that it is in the child’s best interest that ties with his family (quite generally) are maintained. ‘134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child’s best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained.’

[30]Of course, the B case was not considering directly the importance of sibling relationships in this context, and one must exercise care in taking dicta, such as those of Baroness Hale and Lord Wilson, too far. However, perhaps of more materiality in the present context is section 1 of the 2002 Act which applies whenever a court is “coming to a decision relating to the adoption of a child”, which includes “coming to a decision in any proceedings where the orders that might be made include…a placement order” (section 1(7)). The section requires that the paramount consideration of the court must be the child’s welfare, throughout his life (section 1(2)). By section 1(4) the court must have regard to the following matters (among others) (as cited in full by Ms Jenkins for the Third Respondent in her helpful skeleton argument including the emphasis added by Ms Jenkins):

“The court or adoption agency must 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, 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.”

[31]The judge clearly sought to apply those criteria, having referred to the section in her judgment, and I accept Ms Jenkins’ submission that the court has to consider the relevant child’s relationships with all his or her relatives and the wishes and feelings of those relatives, no doubt including siblings. The sibling bond was recognised by all as being particularly strong in respect of all six children and Ms Jenkins directed us to passages in the evidence of the LA social worker confirming that.

[32]Ms Bazley further reminded us that, somewhat unusually, even in the face of repeated care plans for adoption, the parents in this case have continued to have unsupervised contact with all the children and these three children have had contact virtually every day with one or more family members. Further, D, P and M attend the same primary school.

[33]In my judgment, in the face of this material, it would not be right to accept Mr Verdan’s submission that the judge placed too much weight upon the sibling relationship in this case.

[34]It is also of relevance in my judgment to note that sibling contact had not played any part in the LA’s care plans prior to the hearing and in her evidence the LA social worker said that sibling relationship was taken into account by the authority, but would not be an overriding consideration, and that an adoptive placement would always override such contact in the authority’s thinking. It seems that the social worker agreed with the judge’s impression put to her that inter-sibling contact was only an “aspiration”.

[35]It was clear that the judge had significant concerns about the possible failure of an adoptive placement in this case and the consequences if it occurred. I have quoted the relevant passage above.

[36]Mr Armstrong for the Guardian explained his client’s change of stance since the hearing before the judge. He emphasised that, before the judge, the guardian had not given blanket endorsement to the adoption proposal; she had her concerns then and they had been emphasised by the recent events. He told us that the Guardian found it difficult to see that the judge was wrong in her conclusion in this finely balanced case - as it was at the April hearing; subsequent events had endorsed the judge’s conclusions, she considered.

[37]Even apart from the more recent turn of events, I do not accept Mr Verdan’s submission that the judge failed to give adequate weight to the advantages of the permanence of an adoption placement and to evidence of likelihood of it being achieved. I do not regard this appeal as raising any important issue of principle; it is simply a review of a judge’s decision evaluating the consequences of the facts of the case as she found them to be.

[38]There was evidence before the judge as to this LA’s track record of sibling adoption and of potential adopters, but little or no work had been done to see whether the sibling relationship could be accommodated and such statistics as were presented did not address the potential for success of an adoptive placement for children between six and seven years old (P) and five and six (M) who were to be separated not only from parents, but also from siblings to whom they were very close and with whom they had very regular contact. The judge had all these factors in mind, as she clearly demonstrated.

[39]In my judgment, it is impossible to say that this judge was wrong in the decision that she took. I say that on the basis of my own review of the materials, helpfully presented to us by all counsel. However, I also bear in mind the well-known comments of Lord Hoffmann in Biogen v Medeva plc

[1997] RPC 45

as to the need for an appellate court to exercise caution in reversing a trial judge’s evaluation of the facts of a case and Lord Wilson’s statement of the relevance of such considerations in cases involving decisions about the future of a child. Ms Bazley directed us to Lord Wilson’s statement in the B case (supra) at [42] and following, and especially:

“42. Lord Hoffmann’s remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witness of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just “is this true?” or “is this sincere?” but “what does this evidence tell me about any future parenting of the child by this witness?” and, in a public law case, when always hoping to be able to answer his question negatively, to ask ‘are the local authority’s concerns about the future parenting of the child by this witness justified?’ The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficultly of mounting a successful appeal against a judge’s decision about the future arrangements for a child. ”

Lord Wilson also cited Lord Nicholls of Birkenhead in B (A Minor) (Adoption: Natural Parent)

[2001] UKHL 70

at [19] as follows:

“19...Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge’s decision.”

[40]In my judgment, it has not been shown that the judge was wrong in the conclusions that she reached, and, for all these reasons, it seemed to me that this appeal had to be dismissed.

Lord Justice Richards: I agree.

Lord Justice Longmore: I agree also.

Order

Leave to Oppose)

[2013] EWCA Civ 1146

; - Re R (A Child)

[2014] EWCA Civ 1625

As Baroness Hale of Richmond has said in Re B above: ‘The test for severing the relationship between parent and child is very strict. Only in exceptional cases and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.’ [This “quotation” is reproduced as in Judge Matthews’ judgment]. 58. What Baroness Hale was referring to, was severing the relationship between parent and child, but of course that is also relevant to severing the relationship between a child and its siblings and a child and the balance of its family. That is what she was referring to, not simply the parents. Family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relations and where appropriate to rebuild the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. But of course the corollary of that is that, where the maintenance of family would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained. - Y v The UK

[2012] 55 EHRR 33

. 59. Therefore, in considering the local authorities [sic] application for a care order, I must have regard to the welfare checklist factors set out in Section 1(3) of the Children Act 1989. Since the plan is for adoption, also the welfare checklist in Section 1(4) of the Adoption of Children Act 2002. [Re: C (A Child) Placement for Adoption Judicial Approach, Re: R(A Child) 2014]. 60. I must treat the welfare of these three children throughout their lives as my paramount consideration, in accordance with Section 1(2) of the 2002 Act, in considering the local authority’s applications for placement orders. In deciding whether or not to dispense with the parents’ consent I must apply Section 52 1(B) of the 2002 Act as explained in Re: P Placement Orders Parental Consent 2008. I must take into account all of the evidence, also of course the interest of the elder three children, and I must consider each piece of the evidence in the context of all of the other evidence surveying a wide canvas.” - Re B (A Child) (Care Proceedings: Threshold Criteria)

[2013] UKSC 33

; - Re BS (Children) (Adoption Order: Leave to Oppose)

[2013] EWCA Civ 1146

; - Re R (A Child)

[2014] EWCA Civ 1625

[2012] 55 EHRR 33