The case of Re B (A Child) [2013] UKSC 33 discussed in our previous blog:
the Supreme Court stated that adoption is the ‘last resort’ and only permissible if ‘nothing else will do’. It also stressed that the child’s welfare is paramount and that the child’s interests include being brought up by the parents and wider family unless the overriding requirements of the child’s welfare is such that is not possible.
The case of:
D-S (A Child: Adoption or Fostering), Re [2024] EWCA Civ 948 (August 2024)
https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/948
Facts of the case:
The parents of C have learning difficulties.
The mother has two older children, K (aged 10) and J (aged 5), from different fathers.
K and J were previously subject to proceedings due to neglect, and supervision orders were granted in respect of K and J. Whilst the supervision orders were in place, the mother became pregnant with C, and neither of C’s parents informed the children services despite its regular involvement.
After C’s birth, the local authority issued care proceedings. Initially, C and her mother spent two weeks in a foster placement before going to a residential assessment centre. The father of C and the mother’s older 2 children, K, and J, joined them. The parenting assessment was negative, that the parents could not provide long term care for the children
The parents wanted all three returned to their care.
The judge found that the parents could not care for the children and granted care orders for all three children.
The judge endorsed the care plan for K and J to stay in foster care.
In relation to C, the local authority’s care plan for C, an 11-month-old child, was adoption and applied for a placement order, which was required to progress the plan for adoption. This care plan was supported by the Children’s Guardian.
Social worker’s evidence:
The judge was critical of the social worker’s evidence, in that it failed to pay attention to a care plan of a long-term foster for C.
The social worker’s final evidence identified two realistic options for C: adoption and return home. The social worker set out the pros and cons of each option. In court, the social worker and the Children’s Guardian were questioned about their views about fostering, and their recommendations remained the same.
The judge’s decision was of the view that the professional assessment was flawed and refused to grant a placement order for C, which was required to progress the plan for adoption.
Appeal:
The LA appealed against the judge’s decision.
The Court of Appeal held in relation the first instance decision:
- The judge was wrong to find that there was a gap in the evidence and a flaw in the evidence and professional analysis.
- The judge needed to make an all-round assessment of C’s welfare,
- The judge appeared to have considered that the predominant welfare factor was the benefit to C of her parents and half-siblings being a regular presence in her life.
- Instead of making a rounded welfare assessment, the judge had elevated fostering into something that in his view ‘would do’, and therefore ruled out adoption. That was another error of principle (see [43] of the judgment).
- The judge gave little or no weight to matters that were important and the judge was influenced by matters that were not.
- Fostering is just not right for C (paragraph 18), who was 11 months old, it would not provide the legal security for C, whereas adoption would make C a permanent part of an adoptive family. C had only spent 5 months with her mother and siblings. There was no guarantee that a foster placement for all three children together could be found.
- The interference with the Convention rights of the parents and K and J was necessary and proportionate because adoption was the only way of meeting C’s needs.
The court of appeal took the view that:
- The advantages of adoption for C were overwhelming (paragraph 18).
- Adoption is about as radical an interference in the right to respect for private and family life (paragraph 23). The interference with the European Convention of Human Rights of the parents and of K and J was necessary and proportionate because adoption was the only way of meeting C’s needs.
The local authority’s appeal was allowed, granting a placement order in relation to C (see [55], [57] of the judgment).
What this case illustrates is the law remains the same as set out in Re B. Care plans for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33 (paragraph 21).
Therefore, the court will only approve a care plan for adoption as the appellant court did in this case if it is of ‘last resort’ and only permissible if ‘nothing else will do’. The professional evidence was not flawed. The Court of Appeal accepted at the heart of the matter, C needs a lifelong family where she can feel that she belongs. I agree with the professional assessment of the social worker and the Children’s Guardian that this can only happen through adoption (paragraph 52).
The local authority is required to outline realistic options; the preferred plan must be supported by robust evidence and clear analysis to show why this is the only realistic care plan. The evidence should include an analysis of the child’s needs, consideration of the welfare checklist and how this supports the child’s care plan. If the care plan is for adoption, then the social worker’s evidence needs to demonstrate that all realistic options have been considered and that adoption is the only plan that can meet the child’s needs.
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