IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

CASE NO: OX53/2017
IN THE FAMILY COURT SITTING AT OXFORD 
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002

Date: 13th October 2017
Before: 
HHJ Vincent 
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Between :
OCC
Applicant 
and
(1) A (mother)
(2) B (father)
(3) C (by his guardian KT)
Respondents 

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Andrew Leong (instructed by Oxfordshire County Council) for the Applicant
Vicky Reynolds (instructed by Brethertons) for the mother
The father appearing in person 
David Marusza (instructed by Oxford Law Group) for the guardian
Hearing dates: 11th, 12th, 16th October 2017

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JUDGMENT
Introduction 

1.	This is the local authority’s application for a placement order in respect of C, who is six years and four months old. 

2.	On 2nd December 2015 C and his older brother D were placed into separate foster care placements.  C was four, D nine.  The immediate trigger for removal from their mother’s care was that D made an allegation that his older half-brother E had sexually abused him.  The family was already known to the local authority, with concerns about sexual abuse already an issue, as well as concerns about neglect, and poor management of the boys’ behaviour.  C moved to a different foster placement three days later.

3.	Proceedings concerning C and D were issued on 21st January 2016 and were dealt with by His Honour Judge Oliver.  Those proceedings concluded on 18th October 2016, the judge approving care orders with a plan for long-term foster care for both boys.  The local authority’s plan for C had been for adoption, but the guardian supported the parents in opposing the plan.  The local authority was asked by the judge to telephone the current foster carer and ask whether she would agree to care for C long-term, and having been given that confirmation, the local authority agreed to change its care plan to one of long-term foster care, and the case was concluded without a contested hearing.  

4.	In around January 2017 the foster carers indicated that they had felt flustered and put on the spot by this request, and that they were struggling with C.  In March 2017 they stated they no longer wished to care for him.  They agreed to keep him until a new placement was found.  

5.	In February 2017 the local authority re-evaluated its care plan for C, and its conclusion was that placement for adoption was required to meet his welfare.  C’s parents were informed about the change and of the local authority’s intention to apply to the Court for a placement order.

6.	C’s carers were first-time foster parents and there were already some concerns about the placement in early 2017.  A number of significant positives were noted; the foster carers had provided C with a safe home, with routines and structure and C had made very significant developmental progress.  However, professionals also registered concerns about the foster carer’s recording styles, poor attendance at training and a forthright manner, which came over as a lack of emotional warmth.  C had been showing signs of anxiety, picking his skin and banging his head, leaving marks and bruises.  A referral was made to ATTACH (Attaining Therapeutic Attachments for Children) but the foster carer did not attend the appointments.   

7.	Bruises were seen on C’s back at a LAC review in April.  In June 2017 a parent at C’s school made a referral to the NSPCC about C being roughly handled and being called names by his carer.   The decision was made for C to move to new foster carers.  Unfortunately this move was unplanned and sudden for C.  He has been with a new set of carers since June and, while he is being very well cared for, he is perhaps understandably, not finding it all that easy to settle.

8.	The local authority’s application for a placement order was made on 19th June 2017.

9.	The final hearing was listed for three days before me on 11th, 12th and 16th October 2017.  At the outset of the hearing Miss Reynolds on behalf of the mother applied for an adjournment.  The purpose of the adjournment would have been to enable the mother to seek to make an application to the Administrative Court for judicial review of the local authority’s decision made in or around February 2017 to change its care plan.  Having regard to the authorities to which I was directed; Regina (McLellan) v Bracknell Forest Borough Council [2001] EWCA EWCA Civ 1510, Re B [2013] EWCA Civ 964, Re M (care proceedings: judicial review) [2003] EWHC 850 (Admin) and Re C (adoption: religious observance) [2002] 1 FLR 1119, the overriding objective and all the circumstances, I refused the application.

10.	I proceeded to hear evidence and submissions on Wednesday 11th and Thursday 12th October, then reserved judgment until Monday 16th October 2017.
Parties’ positions

11.	The local authority, represented by Andrew Leong, is supported in its application for a placement order by C’s guardian, KT, who is represented by David Marusza.

12.	Neither of C’s mother and father are in a position to put themselves forward as carers for C, but they very much wish to remain a part of his lives and for him to grow up knowing that he is loved by his family.

13.	C’s mother, represented by Vicky Reynolds, argues that the decision of the local authority to change its care plan so soon after a final order was made is irrational, and without foundation.  She argues that if only a year ago the local authority was putting forward to the Court a plan for long-term foster care, then long-term foster care must remain the preferred option and it cannot be said that nothing but adoption will do to meet C’s welfare needs.

14.	C’s father, representing himself throughout these proceedings, also wishes him to remain in long-term foster care.  

15.	C’s parents are currently having direct contact with him six times a year and would want at least that level of contact to continue, whether C is in foster care or in an adoptive placement.  C also has regular contact with his brother D, and they would wish for that contact to continue as well, again, irrespective of whether C were in foster care or in an adoptive placement.  C’s parents are clear however that they think long-term foster care, not adoption, would best meet C’s needs. 
The law

16.	The application for a placement order is made pursuant to section 22 of the Adoption and Children Act 2002 (“ACA 2002”).

17.	A placement order is one which authorises a local authority with a care order for a child, to search for, and then to place that child with prospective adopters (section 21 ACA 2002).  A placement order cannot be made without the consent of the child’s birth parents, unless the court is satisfied that the parent’s consent should be dispensed with (section 21(3)(b) ACA 2002).  The Court cannot dispense with the consent of any parent to the child being placed for adoption unless the court is satisfied that ‘the welfare of the child requires the consent to be dispensed with’ (section 52(1)(b)  ACA 2002).   

18.	Whenever a Court is coming to a decision relating to the adoption of a child, the paramount consideration of the court must be child’s welfare throughout his life (section 1(2) ACA 2002.  In considering the child’s welfare, the Court must have regard (among others) to each of the matters set out at section 1(4) of the Act.  

19.	The court must always consider the whole range of powers available to it and the court must not make any order under this Act unless it consider that making the order would be better for the child than not doing so (section 1(6) ACA 2002.)

20.	In addition, the European Convention on Human Rights applies in every case of this nature.  Article 8 provides that ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.  2. There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
21.	In Re B [2013] UKSC 33 the justices of the Supreme Court considered the approach the Court should take where the local authority’s application is for adoption.  Lord Neuberger said at paragraph 82 of his judgment: 

‘What the Strasbourg jurisprudence requires (and, I would have thought, what the rule of law in a modern, democratic society would require) is that no child should be adopted, particularly when it is against her parents’ wishes, without a judge deciding after a proper hearing, with the interests of the parents (where appropriate) and of the child being appropriately advanced, that it is necessary in the interests of the child that she be adopted.’

At paragraph 104 he said: 

‘… adoption of a child against her parents’ wishes should only be contemplated as a last resort – when all else fails.  Although the child’s interests in an adoption case are ‘paramount’ (in the UK legislation and under article 21 of UNCRC) a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.’

22.	Baroness Hale said at paragraph 198 of Re B [2013] UKSC 33: 
‘Nevertheless, 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.  …
Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted towards that end.  Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interests of the child.’

23.	In Re B-S, and more recently, Re H [2016] EWCA Civ 1131, the Court is reminded of the essential need for a Court carrying out an adoption evaluation to have proper evidence from professionals showing they have undertaken a full evaluation of the options for the children and have given a reasoned account of any recommendation that is made.  The second essential is that the judge carries out a full comprehensive welfare evaluation of all the relevant pros and cons.  In Re G [2013] 3 FCR 293, at paragraph 44 the President of the Family Division said: 

‘We emphasise the words “global, holistic evaluation”.  This point is crucial.  The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. …

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.””

24.	In Re W (adoption: grandparents’ competing claim) [2016] EWCA Civ 793, McFarlane LJ said at para 68: 

‘Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in In re B [2013] 1 WLR 1911, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child… 

… The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale JSC explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the Convention and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime: ACA 2002, section 1. The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons.’

25.	At paragraph 70 he continues: 

‘The guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the guardian appears to have been to hold that if a family placement is a “runner”, then it has to be regarded as a “winner”.’

26.	In addition to these authorities, I have been further referred to and have considered the cases of, Re W [2017] EWHC 829 (Fam) (Sir James Munby P), and Re V (long term fostering or adoption) [2013] EWCA civ 913.
Evidence 

27.	I have read the contents of the trial bundle, which contains both documents filed in respect of the present application and a far greater number of documents from the 2016 proceedings, and a checklist bundle, which includes records of the contact visits that C has had with his mother and father and notes of meetings including LAC reviews.

28.	I heard oral evidence from the social work team manager HR, from EM from the local authority’s family finding team, and from C’s guardian, KT. 

C’s parents

29.	C’s mother has filed a statement which I have read and considered.  She attended every day of the hearing, supported by members of her church.  By agreement of all parties, she did not give oral evidence but chose to address me directly, to express her feelings about the local authority’s application.  She told me that she did not want C to go for adoption, that he needed to see his birth right parents and his siblings.  She was worried about the effect on C’s brother D of not seeing C, and she asked me to consider that contact recently had been going very well, particularly since C had been moved from the last foster placement.  Her message to C was that she loved him with all her heart, she would never forget him, never give up on him and she hopes that he is happy wherever he goes.  She has seen C four times since the final orders were made and is due to see him again at half term. 

30.	I have read a letter in support of the mother from a member of the Church which she attends. 

31.	C’s father attended every day of the hearing.  I have read and considered the letter that he has written to the Court in support of his position.  He (also with agreement of all parties) chose to speak to me directly from his seat, rather than give formal evidence.  He told me that C knows his roots and sees his family regularly, that he knows his family history and knows that he is loved by his family.  He is worried about the effect on D of not seeing his brother, he said it would be a terrible blow for him.  C’s father told me that his hope was that if C remained in foster care, when he became eighteen C could reconnect with the family.  He told me that he cared very much for C and he wanted him to know that.  He has shown his commitment to C by attending every LAC review, every meeting about C, and every Court hearing concerning him.

Evidence from previous Court proceedings

32.	The Court did not give a judgment in October 2016 before making the care orders, but I have had the benefit of seeing the evidence that was filed.  

Threshold

33.	There is a composite threshold document dated 16th May 2016.  The parents had accepted that threshold was crossed, but did not accept all the allegations.  A large number of them relate to the mother’s older son, E, who was 18 at the time.  

34.	It was accepted by both parents that E had sexually abused D, who was 8 at the time of the allegations, by kissing him, rubbing his crotch from behind and fellating him.  It was accepted by both parents that D had been sexually abused by another adult male visitor to the house.  However, both parents denied a failure to protect D and C from sexual abuse.

35.	It was accepted that there were inadequate sexual boundaries within the household.  The following matters were accepted: 

-	That D had offered to suck the penis of an adult male, stating that his father had sucked his penis; 
-	That E spent hours in the home masturbating (the father was unable to accept or deny this); 
-	That E had spent significant sums of money using ‘chatlines’ on the mother’s phone; 
-	That E had asked to see D’s ‘private parts’ (the father was unable to accept or deny this); 
-	That D had exposed himself to a young girl at school and invited her to kiss his penis; 
-	That D had displayed sexualised behaviour with his female cousin at school; 
-	That D had spoken at school about a ‘sexy girls club’ and said ‘he will have sex with everyone’ (the father was unable to accept or deny this); 
-	That E encouraged another student to take his shorts and pants down in a wooded area near school.

36.	The parents both accepted that there were inadequate behavioural boundaries in the house causing D and C to be chaotic and aggressive with one another. 

37.	The mother accepted that she had hit both children.  The father accepted that he hit and kicked D causing him to fall down the stairs.  The father denied that physical chastisement was the norm in the household and denied that he had hit D or C on the arm. 

38.	Allegations of neglect were denied by the father (who was not living in the household).  While the mother accepted that she had difficulty getting the children to brush their teeth or to wipe after going to the toilet, she denied the other allegations (and no findings were made in respect of them) which were: 
-	Inadequate supervision resulting in an excessive number of injuries requiring hospital treatment; 
-	Failing to seek medical attention for D’s broken arm and having no explanation for the fracture; 
-	Inadequate physical care such that the children entering foster care lacked very basic self-care techniques such as teeth-brushing, washing and personal hygiene on toileting; 
-	Lack of stimulation and nurture leading to developmental delay. 

Social work evidence

39.	Parenting assessments filed in the 2016 proceedings highlighted very significant concerns about both the mother’s and the father’s parenting capacity.  The social work assessor, DC, described their parenting style as ‘low warmth, highly critical’.  Extracts from her assessment of B are as follows: 

‘B tends to be reactive with D and C and is not able to safeguard the children.  C does not listen to him and B has not previously invested the time and effort to develop a collaborative, respectful relationship with him through which C will do as he says. B and C do not have shared understanding of what is and is not acceptable behaviour.  As a result B spends his contact time responding to C’s dangerous and out of control behaviour.  The overall lack of control often leaves D’s positive behaviour unnoticed and/or unpraised by B. …

As with A, B lacked knowledge and understanding of how to provide, consistent, safe, secure boundaries for the children and were ineffective in providing a safe home environment.  The parents tend to be very directive in their interactions with the children and are not able to communicate in a sensitive manner to respond to the children’s needs and their individual vulnerabilities.  This has created unrealistic expectations of their children as the parents have the belief that the children should do as they ask without giving them the explanations for their requests or teaching them essential self-care and socialisation skills. …

… A and B have consistently used verbal and physical chastisement as punishments for normal child development and testing out boundaries.  They have failed to provide their children with unconditional positive regard and as a result of the children being unable to please their parents or receive physical and emotional comfort from them, they have responded by constantly exhibiting verbally and physically aggressive behaviour towards their parents and to each other when in the care of their parents. …. 

[The parents] have spoken about their frustration and disappointment that children do not listen to them and they are not able to manage the out of control behaviour verbally and physically aggressive behaviour [sic.] that the children have exhibited.  B and A are firmly of the view that the only way to implement any positive change in the children’s behaviour which would enable them to safeguard their children is for professionals involved with the children to tell them to listen to their parents.  When physical and verbal chastisement was ineffective A and B would withdraw physically and emotionally and be unavailable to meet the needs of the children.’  

40.	In her analysis of C’s needs in her statement prepared in August 2016, DC wrote: 

‘C continues to be oppositional towards his parents and D and this would indicate that C is anxious about having to return to his parents’ care where he was mostly unhappy and frustrated.  C has little understanding of time and lives in the here and now and if the Court makes a placement order for C, then direct work will be undertaken with C to introduce the new children in care social worker and explore the concept of forever parents with C. This work cannot be done until the court has made final orders in respect of C.

C has positively embraced the changes he has experienced since being accommodated with foster carers.  C loves having the opportunity to be part of a loving family with opportunities to socialise with extended family members and friends.

C has thrived academically at X School where he has settled and has friends.  C is confident in school, needs consistent boundaries and routines and values his teacher’s firm but fair approach.  C does not have a close relationship with D and consistently rejects him.  This reflects the unpredictable care he received from his parents and his drive to live in the here and now.’

41.	In her analysis of the benefits and disadvantages of long-term foster care compared to adoption, DC put as a factor against long-term foster care that, ‘there would be an expectation of continuing contact between C and his parents and E and D.  This is likely to cause C anxiety as he presently experiences with contact.  C has friends at school and in the community so his rejection of his parents and D is an indication of the impact of his experience of neglectful, abusive parental care.’

42.	In her addendum statement dated 5th October 2016, DC described C and D’s relationship as ‘dysfunctional’ and she expresses serious reservations about whether or not continued contact would be beneficial to either of them.  She says ‘it is unlikely that therapeutic intervention would be successful in making the relationship positive for each child and may serve to harm them through repeatedly exposing them to situations in which they face aggression or being exposed to uncomfortable levels of affection.  It is difficult to identify what therapeutic intervention might work to improve their relationship as the initial analysis of the relationship shows it to be so poor.’  She writes that ‘C finds contact with his parents and D particularly difficult and he is not able to emotionally regulate himself with his parents and D.’  She says he presents as ‘unable to hold his parents, E and D in mind when he is away from them.’  She concluded that there were few examples of any positive bond between the siblings and numerous examples of a poor bond.  She was concerned that continuing direct contact ‘would have little positive impact on the boys and may harm them through the conflict in their needs and lack of ability to relate to one another’s needs causing repeat episodes of aggression and rejection for them both.  This could cause them emotional and physical harm.’ 

43.	There is no evidence from the social worker to show the process by which she came to change her mind and agree to a plan for long-term foster care with regular contact between the boys throughout their childhood.  The revised care plan for long-term foster care was filed on 19th October 2016.  It is noted that C’s emotional welfare would be promoted by his contact with his parents being reduced to six times a year (and four indirect contacts) and with his brother to four times a year.  It is noted that the foster carers with whom he had been placed on 4th December 2015 would be assessed as potential long-term carers.  If they were not suitable or if a future placement broke down, the contingency plan was to place C with other long-term foster carers. 

Evidence of the children’s guardian

44.	C’s guardian in 2016 was not in favour of adoption.  She took into account the social worker’s views and while she noted that C did tend to push D away from physical contact, she also noted there were instances of some ‘lovely play’ between the boys and some warm interactions.  In her final analysis, she recorded that she had considered adoption for C, that it could be a suitable option for some children of his age, and that ultimately he would have a forever family and permanence.  However, she concluded that ‘I am unable to agree that adoption would be in his best interests having regard to D and C’s association with their family as this option would indeed sever their family ties.’  Her preferred option was for long-term foster care and for the parents to be supported to improve their relationships with the children and for the children to be supported to improve their relationships with each other.  

Witnesses at 2017 hearing

HR

45.	HR is a co-author of C’s child’s permanence report, together with C’s current social worker, CA.  HR is CA’s supervising social worker.  This report is a composite of that which was prepared for the earlier proceedings, with updated information added to existing text.  HR also prepared two statements dated 12th June 2017 and 2nd October 2017 in support of the placement application.  She is the author of the care plan dated 2nd October 2017.

46.	As she acknowledged, it might have been better to have reviewed some of the existing information in the permanence report, because for example some of the information about how C was doing in placement was based on reports from the previous foster carer and significant doubts about her reporting have since arisen.  Not all updated information appears to be there – for example, the report does not include information about the more recent contacts between C and his parents.  

47.	However, in general the report is comprehensive, states clearly the sources of information, and HR’s updating statements do provide more evidence about the current situation for C.  

48.	HR acknowledged in her written and oral evidence that contact between C and D has had positives to it, but nevertheless describes their relationship as challenging.  D is said to really value contact and would like more of it, but C finds D overwhelming because he is trying to cuddle C which C does not like.  The boys struggle to play with each other, as opposed to alongside each other, and there are often arguments which get physical.  The contact has to be very closely supervised and carefully managed.  This is evident in the very brief notes of contact between the boys that I have read, although it is right to note that the very last contact report shows a marked improvement from the previous contact, which had evidently been very difficult. 

49.	HR describes the contact between C and his father as on the whole positive with good interactions and no behavioural issues.  C’s contact with his mother she describes as more problematic; communication is limited and C prefers doing his own thing.  She says his behaviour usually regresses in contact and his mother finds putting boundaries in place challenging.  I have read all the contact records and HR’s descriptions are consistent with what I have read. 

50.	In her last statement HR describes the difficulties that C is currently experiencing; he is said to be displaying challenging behaviours and he is struggling to manage his emotions and to regulate his behaviour.  HR reported that C has been badly affected by the change of carers in June; blaming himself and filled with anxiety that if he is naughty then a social worker will come to take him away.  Although the recent move will of course have had a significant impact on C, HR is concerned that some of these difficult behaviours might have been evident to the previous foster carers, but information was not shared with the local authority.  On any view it is unfortunate that the ATTACH work did not get going earlier this year because C’s carers at the time were not engaging with the service.

51.	The local authority proposes that C is referred to the Oxfordshire Treatment Foster Care which provides intensive support to C and his carers to address current behaviours and to help his transition to a permanent home. 

52.	I was impressed by HR’s evidence.  She presented a thoughtful and full analysis, considering the benefits to C of maintaining links with his brother, parents and wider members of his birth family, and the likelihood that he would suffer significantly to be separated permanently from them now, at the age of six.  In doing so, she had carried out a thorough and evidence-based analysis around the particular nature of those relationships and their importance to C, now and for all his life.  Her analysis was insightful and focused on the particular child, not just any child for whom adoption was being considered.  She weighed in the balance what C’s experience of life would be as a child in care throughout his childhood, and the potential benefits and disadvantages of the realistic options for him.  Again, her analysis was focused on an assessment of his particular needs, not just considering the benefits or disadvantages of adoption and long-term foster care more generally.  

53.	 As she had not been involved in the proceedings in 2016 she was unable to explain why the local authority’s care plan had changed from adoption to long-term foster care and back to adoption within such a short period of time, but she was clear that the decision of C’s foster carers in early 2017 not to put themselves as long term carers was very significant and represented a very substantial change so far as the local authority was concerned.  She acknowledged that the final care plan was not written on the basis that C’s foster placement would necessarily be with his existing carers, but just for long-term foster care generally.  However, she maintained that the effect of those carers giving notice in early 2017 and the concerns they had about the placement so soon into the care plan did cause the local authority to ‘go back to the beginning’ so far as their plans for C were concerned.  

EM

54.	EM was a very compelling and authoritative witness.  She is a senior practitioner with Oxfordshire’s adoption team.  She has prepared two reports for these proceedings.  She described in her written and oral evidence the process by which a child who has been placed for adoption can be matched to prospective adopters.  It may be thought that a child of C’s age and with his experiences within the family in his early years and thereafter moves between foster carers, may not be easy to place with a ‘forever’ family, and when placed, may find it difficult to make new and secure attachments.  However, EM’s evidence was that she was confident that a match to a new family for C could be made within about six months.  She said that she had confidence that with the right match, the risk of adoption breakdown was very low, and that with the benefit of work done by the Oxfordshire Treatment Foster Care team, there was a good prospect of C’s being able to settle into a new family.  

55.	Although in some ways his age could be said to present some challenges to placement, she said that in her experience, a child of C’s age and who has been in care for some time is in some ways easier to match than a baby.  This is because the more knowledge the family finding team have about a child, his behaviours, his character, his likes and dislikes, the better able they are to find a family that meets his particular needs.  Older children unlike babies, have more developed personalities and their wishes and feelings can better be ascertained.  All this helps to find a good match, which in turn improves the chances of the adoption succeeding.  EM told me that prospective adopters of children in the six to ten age group tended to be those with pre-existing experience of caring for children and were going in with their eyes wide open to potential difficulties.  That is not to say that she would only look for those with pre-existing childcare experience in C’s case, but that she does not feel there is a reason to be more pessimistic about placing a child of C’s age than she might a much younger child. 

56.	EM’s considerable expertise was evident.  Her conclusions were supported by the information that she had obtained, both by running checks about the availability of current prospective adopters, and from her long-standing experience in this area of social work.  I accept her evidence and regard it as a reliable indication that were C to be placed for adoption, then there is good reason to consider that a placement would be found for him within about six months, and that there is reason to be optimistic that it would be a placement that would sustain. 

KT, C’s guardian 

57.	KT was appointed C’s guardian in these proceedings; she was not involved in the 2016 care proceedings. Her report is dated 15th September 2017.  

58.	Her report is detailed and based on a thorough review of all the evidence.  She has met with C and had a full and frank discussion with his current carer who reported that C continues to present real challenges in his placement; his behaviour is unpredictable and the previous Saturday had been ‘a real low point when C was cruel to one of the family animals and not at all apologetic.’  

59.	KT’s analysis is insightful and considers the options of long-term foster care and adoption both in isolation and by reviewing the positives and negatives of each option compared against one another.  She concludes that while this is a difficult and finely balanced case, she supports the local authority’s application.  In her oral evidence, she confirmed that she was confirmed in her views by knowledge of the local authority’s proposal to refer C to OTFC, and having heard the evidence of EM about the prospects of finding a family for C.  KT was impressed and reassured by the evidence of EM.  

60.	KT gave well-reasoned and clear answers to questions put to her in evidence.  She has given careful and particular consideration to C’s needs.  She had investigated and come to a view about his particular needs, now and throughout his life, about the nature of his relationships within his birth family, and his likely experiences if adopted or if in long-term foster care.  While she acknowledges that placement for adoption would separate C from his family for ever, and the potentially severe and lifelong adverse consequences of this, she is clear that his particular and overriding need is for stability and permanence, and for ‘parents not carers’.  In her view those needs throughout his life are best met by his being placed for adoption.  
Welfare checklist

61.	I turn now to consider the application in light of each of the matters on section 1(4) ACA 2002 checklist. 

(a)	the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);  

62.	C is not able to make an informed decision about whether or not he would want to be adopted.

63.	In April 2017 C is recorded as saying that he would like to stay with the foster carers he was then living with forever.  He also said that he would like to live in a house with his mother, father, E, D and the dog but it was ‘unsafe’.  He could not communicate what he meant by unsafe.  He said he was happy ‘sometimes’ at this house and that contact with them was ‘sometimes good, sometimes bad’.  He was unable to draw a family or house he would like in the future and was not able to express his wishes and feelings about the future. 

64.	C has been described by a number of the witnesses as a child who lives for the ‘here and now’.  He does not look forward to seeing members of his family at contact, and does not appear to be distressed to say goodbye; he focuses very much on the next activity.  Having parted from his foster carers, with whom he lived for eighteen months, he is said to mention them very rarely.  Similarly, he does not appear to hold members of his birth family in his mind when he is not with them.  

65.	He does not talk about his feelings and is very reluctant to engage in any conversations about his future or his family; the guardian said his foster carer described him as a ‘master of distraction’ and this is consistent with what HR observed.  She said that as soon as anyone tries to talk to C about his feelings or future plans he gets very excitable and in this way effectively shuts down the conversation.  At other times he has said he ‘can’t remember’ if asked about his family.  While he has been described as a child whose emotions are ‘closed down’ or ‘shut off’, that is of course not to say that he is a boy without feelings.  However, at present he is unable fully to identify or to express those feelings.  

(b)	the child’s particular needs; 

66.	Each of the people who told me about C– his parents, HR, and the guardian – spoke about him with great warmth and affection.  The guardian told me that he was a child who was very easy to warm to, a very endearing little boy, albeit not altogether easy.  His father recollected with a smile a recent contact when C had run up to him and given him a hug.  C is described consistently within the evidence as a child with a great deal of energy, happy and confident, who lives in the present, and who finds it difficult to express his true feelings.  He benefits from consistency of routine and boundaries.  However, although he does not express it verbally, he demonstrates significant levels of anxiety; there have been episodes of his pinching himself, head banging, biting his nails until they bleed, and bed-wetting and soiling.  There has not yet been any work done with ATTACH or a similar organisation to enable there to be a full understanding of the experiences he had when he was living with his parents and the long-term impact upon his physical and emotional development.  He has undoubtedly suffered from the breakdown of the foster placement in June. 

67.	He was already a child with heightened needs for his age, but those needs have increased due to events of the past year.  I accept the guardian’s evidence that as a consequence of the breakdown of this placement C will have suffered very much.  His understanding was that he was to stay with his foster carers.  He blames himself for the failure of the placement and is holding within him anxiety that his behaviour, and whether or not he can control his behaviour, may cause a social worker to come and take him away from where he is now.  I accept also the guardian’s evidence that his trust in adults will have been fractured as a result of a further change of carer.

68.	The weight of the evidence from the guardian, from HR and in fact the evidence from the professionals in the previous proceedings, tells me that C is a child who needs to have consistency of care both in terms of routines and boundaries/consequences for behaviour.  He needs to be safe and to feel safe, which means his carers must be predictable, constant and loving.  In time he will need help to understand the experiences he has had in his early childhood, to learn that they are not his fault, and to know that he can be loved and wanted and appreciated for who he is, not just tolerated, or given a home only so long as he manages to please others or meets their standards of behaviour.  This could also be expressed as a need for unconditional love and for a home he knows to be permanent.  He needs to be allowed to explore his own identity and develop his own interests - currently dance lessons continue to be important for him - to be supported at school in his learning and with making friends.  The guardian’s opinion is that C’s overwhelming need is for permanence.  She describes this as an acute need, and for her is the overriding factor in her welfare analysis.     

69.	To provide all this to C would be a big task for any carer, and I would agree with the guardian, that would ideally come from a parent, rather than an employed carer.  McFarlane LJ said in Re W (A Child) [2016] EWCA Civ 793 at para 64:  

‘Placing a child for adoption is an act of altogether higher significance than arranging a foster home under the umbrella of a care order. Foster carers will seldom expect permanence and, indeed, will have been trained so as to be able to support the child moving on if required to do so in time. Whilst undoubtedly foster carers and fostered children may achieve a fondness for each other, the establishment of a firm and secure attachment is not one of the primary aims of the placement, in contrast with adoption. One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters.’

70.	Mr Leong also referred me to the case of Re V, (Long Term Fostering or Adoption) [2013] EWCA Civ 913 in which Black LJ (as she then was) said: 

‘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.’

(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;

71.	As the case law highlights, to sever the relationship of a child from his birth family is only to be done as an order of last resort, where nothing else will do.  There can be no doubt that living the rest of his life as an adopted child, knowing that he is no longer a part of his birth family, will have a profound effect on C.  

72.	As the plan is that D would remain in foster care and would continue to see his birth family regularly, there is the potential for C to suffer as a consequence and worry that there was something about him, something wrong with him, that meant he had to be adopted and have all contact with his birth family severed.  

73.	C is of an age where he is clear about his place within the family unit and his identity is as a member of that family.  It would inevitably cause very significant disruption, and confusion for him to be told he was to become part of a new family.  

74.	However, the evidence is that C’s attachments to his birth family are not straightforward because of the experiences he has had in their care, and along with some evidence of positive moments in contact, there is evidence that those continuing relationships could pose a risk of harm to C in the future. There is potential for him to benefit hugely from a move to a new, permanent family, while life story work and indirect contact could help him to maintain links with his birth family in a safe way. 

(d)	his age, sex, background and any of the child’s characteristics which the court considers relevant; 

75.	These matters have been considered above, save to record that I accept the evidence of EM that C’s current age of six years and four months should not be regarded as an obstacle which would prevent or otherwise significantly reduce the chances of his being matched for adoption, or of that adoptive placement being sustainable. 

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

76.	C has suffered harm from his early experiences living with his birth family, from his separation from them, and more recently it would appear from his experiences in foster care and the manner in which that placement came to an end.  

77.	Given the proposal that he undergo therapeutic work within a foster placement that may take many months, and the need to find the right match for him, he is unlikely to be placed for adoption much before the age of seven.  While I accept EM’s evidence that there are good prospects of that placement being stable, secure and permanent, if the placement does break down, the consequences for C would be little short of catastrophic.  He would almost certainly be the subject of a further set of care proceedings, and he is likely to re-experience feelings of blaming himself, feeling anxious and insecure about wherever he is then placed, and feeling very mistrustful of adults.  He would not by then have had contact with his birth parents for a period of time and may find it very difficult to reconnect with them, or alternatively may reconnect with them but in an unplanned and unsupported way. 

78.	While there is perhaps more chance of a long-term foster placement breaking down – foster parents retire, have children of their own, move to different areas, become carers for elderly relatives, or simply decide not to continue with a placement – the consequences for C might not be regarded as quite so catastrophic.  He would have a social worker whose responsibility it would be to manage a transition to a new carer.  There would be no need for a further set of proceedings.  Ideally he would have continued to have contact with his birth family which would provide him with some sense of continuity and comfort.  Nonetheless, given the evidence of the impact of the recent change of placement upon him, there can be little doubt that he would suffer very significantly and if there were a number of placement breakdowns in foster care, which has to be anticipated, his suffering would be re-experienced and compounded every time.  He is likely to have to move schools with a new placement, causing a risk that his education will be adversely impacted as well as his ability to make secure friendships.

 (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 its doing so; 
(ii) 	the ability and willingness 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.

79.	There is no doubt that C’s parents love him and would want to continue to see him regularly.   If he were placed in long-term foster care, he would be able to continue to see them and D roughly four times a year each.  

80.	C’s parents are clear about the pleasure they get from seeing C, and also are clear that the visits are very important to D.  However, while there is evidence of some positive moments, the evidence about the benefit to C of these contact visits is more equivocal.  From the 2016 proceedings there is DC’s evidence of her very significant concerns about the potential harm that continuing contact with D could cause to C.  The brief contact notes show that a lot of input was required to manage the contacts, the boys are noted to have conflicts and arguments, but also difficulties around D wanting to kiss and cuddle his brother and C pushing him away.  And while there is evidence that the contacts have improved over time, there is no evidence that C either looks forward to the contacts or holds members of his family in his mind afterwards.  He has been resentful about leaving a current activity with a foster carer in order to attend contact.  He has not displayed any particular upset or distress in the hours or days after contact has concluded.  

81.	C’s parents are not in a position to care for him and there are no other relatives or other persons connected to the family who could do so. 

82.	C’s parents would understandably be devastated to lose him to adoption.  C’s relationship with his parents could be kept alive to a certain extent by life story work, letterbox contact and the potential for direct contact in the future.  The guardian suggests that while an open adoption might be explored, she would not wish to make it a condition of the placement such that the prospects of finding a good match for C were reduced.

83.	D values his relationship with C very much.  There is perhaps more of a prospect that he might be able to continue having contact with C even if C were adopted; sibling contact, even where one child is adopted and the other in foster care, is not uncommon.  

84.	C’s father told me that were C to stay in foster care then at the age of eighteen he could return in effect to the care of his birth family.  I would have some concerns about this being communicated to C as a plan.  There is still a great deal of work to do to understand the nature of his early years’ experiences.  I would be concerned about a teenaged or young adult C going back to his family in an unplanned and unsupported way.  Although I appreciate that social workers and foster carers could help him to reconnect, there comes a time when they are no longer around.  If C were adopted, he could explore a means of reconnecting with his birth family together with his adoptive parents in a safer way.  He would have the safety net of his adoptive parents’ lifelong commitment to him. 
The range of orders available to the Court

85.	C has had very difficult experiences in his life up to this point and whatever path for him I decide best meets his welfare, he faces potential sorrow, difficulties and risk of further harm. 

86.	If he were to spend the rest of his childhood in care, he would have the benefit of continuing to see members of his birth family, including his brother D.  Long-term foster carers are in general generous spirited, committed, well-trained, experienced and very caring individuals.  There is a prospect that C will be matched with a loving and kind family, and even that the foster placement goes so well that after a period of years applications are made for special guardianship orders or even adoption orders.  Permanence could be achieved this way but more gradually. 

87.	The disadvantages to C of a care order with a plan for long-term foster care is that he would have been from the age of four until adulthood a child in care.  He is likely to have a succession of social workers allocated to him and it is unlikely given his very young age that he will have the same foster carer until adulthood.  He is likely to experience again the feelings of rejection and disappointment when a placement comes to an end, and to connect it to his own behaviour, or what he might well come to regard as his essential unlovability.  He is at risk of a disrupted education.  He will be the subject of continued meetings; it is a social worker who gives permission for school trips, he has no mum or dad to come to school plays or sports days or parents’ evenings.  His foster carer may be committed, loving, warm and kind but it is his or her job to be C’s carer, not his parent; it is not his or her obligation to provide C with unconditional love or the promise of a forever home.  Foster care comes to an end in early adulthood.

88.	While continued contact with his birth family may take place, the benefits to C of this cannot be taken as read – there must be some caution given the local authority evidence in the previous proceedings, and current evidence about C’s presentation before, during and after contact.  There is some risk of harm to C from continued contact with his birth family without there having been a process for professionals, and C, fully to understand his early years’ experiences and their long-term effect upon him.  I also consider there is a further risk of an unplanned and unmanaged reconnection to his birth family as he becomes older and is approaching adulthood as a care leaver; such reconnection I would suggest in the particular circumstances of this case is likely to be managed better within the framework and security of an adoptive placement.

89.	The potential advantages of placement for adoption are that C gets to be at the heart of a family with a loving and concentrated focus on him, his needs, his interests, and from the first day that he is placed with them, they are preparing themselves to commit themselves to him for the whole of his life.  His particular needs for stability, consistency of care and permanence have a much better prospect of being met in an adoptive placement than in long-term foster care.  

90.	The disadvantages are that he would no longer be a part of the family into which he was born.  He is perhaps unlikely to see his mother and father again during his childhood and contact with D is not guaranteed to continue.  If the adoptive placement breaks down, the consequences will be very severe, and C will be thrust once again into another set of care proceedings.  His ability to reconnect to his birth family at that stage is likely to have been compromised by a break.  

Conclusions 

91.	I have had regard to all the evidence, to the factors on the welfare checklist, C and his family’s article 8 rights, and have compared the potential advantages and disadvantages of the two realistic options against each other.  C’s welfare throughout his life is my paramount consideration, and I have concluded that C’s welfare can only be met by his being placed for adoption.  In all the circumstances, his welfare requires that I dispense with the consent of his parents to the making of a placement order.  My reasons are as follows: 

(i)	I have had regard to all the circumstances of the case and the factors on the welfare checklist.  When considering each of the options in isolation and compared against one another I am clear that nothing else but adoption will do to meet C’s welfare; 

(ii)	The fact that long-term foster care remains a feasible or realistic option for C puts it in the category of being a ‘runner’, in Lord Justice McFarlane’s words, but it does not automatically make it a ‘winner’.  Similarly, the fact that adoption will sever C’s ties with his birth family cannot be a reason for not making a placement order.  After careful consideration of C’s particular needs throughout his life, I am satisfied that long-term foster care is likely to fall short and will carry with it a number of risks to C.  There are still risks of harm to C with adoption, in particular because there may be a breakdown of the placement, and because of the inevitable sorrow of being parted from his birth family.  However, having regard to his needs throughout his whole life, I am satisfied that the risk of harm is substantially outweighed by the potential benefits to him of placement in a permanent home with new parents, not carers, and it is only in such a placement that his needs could be met;

(iii)	I have paid close attention to the views of the experienced social worker, whose evidence was persuasive and based on a thorough and insightful analysis of the realistic options for C; 

(iv)	The experienced guardian’s evidence was based on a thorough evaluation of all the evidence in the case and a balanced and perceptive analysis.  She has weighed all relevant factors and come to a well-reasoned conclusion.  Her evidence was powerfully persuasive and there is in my judgment no good reason to depart from her recommendation; 

(v)	The evidence of the family finder was compelling and adds weight to the local authority’s case that the prospects for C of being placed with a ‘forever’ family are promising, particularly if he and current and future carers receive support from Oxfordshire Treatment Foster Care; 

(vi)	While I acknowledge that the local authority was persuaded to change its care plan at the final hearing in October 2016, I do not accept that the local authority was bound to that care plan for the rest of C’s minority.  The need to reflect again within a short time was evident given the particular circumstances of the case, where there was (a) a substantial body of evidence that highlighted concerns about continued contact for C with his birth family, and his particular need for permanence and stability; (b) the original change of plan at final hearing does not appear to have been supported by the IRO, (c) there was not a contested hearing or judgment of the Court, and (d) where difficulties with the foster placement in which C was in came to light within a very short time.   I accept that C’s parents may well have felt distressed, angry and bewildered by the change of plan, but C’s welfare is paramount and the local authority is obliged to reflect upon and review its care plan regularly.  Having decided that the current care plan was not meeting C’s needs, the local authority acted appropriately by issuing its application for a placement order. 

Contact

92.	The local authority proposes that the current levels of contact between C and his parents, and C and D should continue while C remains in foster care, but once he has moved to live with prospective adopters, that contact should be letterbox contact only as between C and his parents.  

93.	The guardian suggested that the local authority might raise the idea of direct contact between C and his birth parents with prospective adopters, but not that this should be a condition of the placement.  I would agree with this approach.  

94.	The local authority proposes to look for adopters who would be willing to arrange contact for C and his brother D.  I agree that this should be an aspiration, although ultimately it will be a matter for prospective adopters to decide.  I can understand there might a more cautious approach when the other sibling is in foster care and having contact with birth parents than when the other sibling has been adopted elsewhere. 

95.	B and A have attended every day of the hearing.  It cannot have been easy to listen to all the evidence but they were at all times good-natured, participated politely, calmly and with dignity.  It is clear that they love C very much and that they want the best for him and for him to be happy wherever he lives.  They have done everything that they could to fight for him.  They would desperately like to continue to be a part of his life and for D and C’s relationship to flourish.  Although their contact will continue at the same level it has been until C s placed, which, with the need for therapeutic work, is likely to be for many months yet, I am sorry to be the cause of the pain that they will suffer when C is placed away from the family with prospective adopters.  However, having regard to all the circumstances of the case I am satisfied that C’s particular welfare needs require me to make this drastic, but in my judgment necessary step.  

Joanna Vincent 

16th October 2017

Her Honour Judge Vincent 
Family Court, Oxford  

Summary of decision and reasons 

1.	The Court will make a placement order for C.

2.	A placement order allows the local authority to find adopters and place C to live with them.  After about three months the adopters would be able to apply to adopt C.

3.	Until C is placed with the adopters he will stay in foster care and he can carry on having contact with his mum, with his dad, and with D. 

4.	After C is placed for adoption, it is unlikely that he will have direct contact with his birth family.  They will be able to have ‘letterbox’ contact, usually once a year.  

5.	However, the local authority has said that it will talk to the adopters about whether they might feel able to bring C for contact with his mum, his dad, or with D.

6.	The judge thinks that it is important to find the right adoptive placement for C.  So while the local authority will talk about birth-family contact with the adopters, in the end they might choose adopters who do not feel able to arrange for C to have contact with his birth parents, or with D.  

7.	These are the main reasons the judge decided that C should be placed for adoption:

-	Very sadly, C’s own family are not able to care for him;

-	That leaves two options – foster care or adoption;

-	There are good things about foster care.  The best thing about it is that C could carry on seeing his birth family;

-	These are some worries about foster care for C: 

•	Even though lots of foster carers are great, being in foster care is not the same as being part of a family;

•	If C stayed in foster care he is likely to have a lot of different foster carers all through his childhood.  Every time he changes foster carer he will suffer;

•	C would have social workers in his life all through his childhood;

•	Foster care comes to an end once a child has finished education and then C would not have a family; 

•	because of the experiences C had when he was living with his birth family, it may do him more harm than good to carry on seeing his family.

-	If C is adopted he has the chance to live with a family who will love him and care for him for all of his life;

-	There is always a risk that an adoptive placement will not work out and if so that would be very bad for C.  However, in C’s case the risks are small.  The judge thinks the risk is worth taking to give C the chance of growing up in a family where all his needs are met;

-	C is likely to be very sad about having been separated from his birth family.  But C has lived away from his birth family since he was four years old so he is learning to live his life apart from them.  C can still keep in touch with his birth family through life story work.  There is a chance that the adopters will feel able to arrange for C to have contact with D or with his mum and his dad;

-	C’s mum and dad love C very much and they have done everything they can to fight for him.  Even though C is not with them, they want him to know that they will always love him and they want him to be happy in his life.