B (a child), Re

Adoption should not displace placement with a natural parent unless there are compelling reasons. The risk of harm must be so high that the child’s welfare requires alternative care, and the intervention must be proportionate.

The court must assess relevant concerns individually and cumulatively. Delay, parental weaknesses, household pressures and possible conflict with another parent do not meet that threshold without clear findings establishing their seriousness. Available support and judicial safeguards, including orders controlling contact, must be considered. A trial judgment must make clear findings on disputed evidence, direct itself on the law and state a clear conclusion.

The child’s father sought placement with himself and his partner. The local authority and guardian supported a care order with a care plan for adoption and an associated placement order. After hearing social work, psychological, parental and guardian evidence, Brighton County Court, before Her Honour Judge Norrie, rejected the father’s application and made the care order on 2 February 2007.

The father appealed. The Court of Appeal considered whether the judgment sufficiently analysed the evidence and whether delay, questions about the father’s motivation, outstanding support, household overloading and possible conflict involving the mother could justify adoption rather than placement within the natural family. It also considered the appropriate order on appeal.

Disposition. Lord Justice Thorpe delivered the judgment and Lord Justice Toulson agreed. The appeal was allowed. The care order was replaced by a residence order under statutory supervision.

1. Trial judgment. A judge determining an issue as important as family placement must make clear findings of fact on disputed issues, give careful directions on the law and reach a clearly expressed conclusion. A discursive recital of reports and oral evidence, without clear findings or adoption of particular evidence, is a fundamental flaw. The appellate court should not infer that recitations were intended as findings.
2. Threshold for adoption. The child’s prima facie entitlement to family upbringing and the requirement of proportionate intervention meant that adoption required compelling factors. Alternatively, the risk of harm had to be so high that the child’s welfare required alternative care. The relevant concerns had to be assessed both individually and cumulatively.
3. Application of the threshold. A possible three-month delay for further assessment could not, in itself, constitute a compelling factor or sufficiently high risk of harm. The case was not an application for assessment under section 38(6). Concerns about the father’s motivation, past departures from family life, outstanding work and household pressures were legitimate matters for consideration, but the judge’s positive findings did not establish the necessary level of risk.
4. Where a natural-parent carer has identified support needs and a unique capacity to provide family care, the local authority should do more than identify its misgivings. It should take active steps to lead the carer to available resources. The judge also undervalued the court’s ability to control disruptive or harmful contact by appropriate orders.
5. Orders. The concerns fell well short of the required foundation, even cumulatively. Further assessment while the child remained with foster carers and had contact only was impractical. The appropriate course was a residence order under supervision, enabling rigorous investigation, assessment and support. Buckinghamshire was to undertake supervision, with West Sussex assisting the transfer of professional responsibility.

The formal order was: applications granted; appeal allowed.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 577, 24 May 2007: appeal allowed; care order replaced by a residence order under statutory supervision.
• Brighton County Court — Her Honour Judge Norrie rejected the father’s application and made a care order with a care plan for adoption and an associated placement order.