SB v County Council

Under section 52(1)(b) of the Adoption and Children Act 2002, the court must decide whether the child’s welfare throughout life requires adoption rather than an outcome short of adoption. It must apply the statutory welfare checklist carefully, recognise the exceptional interference with family life, and ensure that the facts provide cogent and proportionate justification. This is not a separate enhanced welfare test.

Dual planning for adoption and long-term fostering is permissible where the agency is satisfied that adoption ought to be pursued, although it recognises that an adoptive placement may not be found. It may avoid harmful delay. In a case where sibling contact is fundamental, the court should retain control of disputed contact arrangements rather than leave them to the agency or prospective carers.

The mother appealed placement orders made by HHJ Richards in the County Court on 12 October 2007 for her two older children, D and S. Neither parent nor any wider family member could care for them. The local authority proposed a simultaneous search for adoptive and long-term foster placements, while seeking to preserve the children’s particularly important sibling relationship.

The mother contended that the judge had applied the wrong test for dispensing with her consent under section 52(1)(b) of the Adoption and Children Act 2002, that dual planning was unlawful, and that the judge had unjustifiably departed from professional evidence about the risk to contact. The appeal also raised the court’s role in safeguarding sibling and birth-family contact after placement and adoption.

1. Appeal dismissed. The judge correctly held that the children’s welfare required dispensation with the mother’s consent and that placement orders should be made. His assessment of the evidence, including the risk to sibling contact, was open to him.

2. Section 52(1)(b) of the Adoption and Children Act 2002 requires the court to ask whether the child’s welfare throughout life requires adoption, rather than an arrangement short of adoption. The answer must be reached by applying section 1, especially the extended welfare checklist in section 1(4). The word “requires” conveys an imperative and reflects the need for a proportionate, cogently justified interference with article 8 family life. It does not impose a separate or enhanced welfare test beyond the statutory scheme.

3. A judge must not simply recite the statutory language. The underlying facts must support the conclusion that adoption and dispensation are necessary and proportionate. Particular care is needed where a placement-order application follows closely after a care order, or where the judge did not approve the earlier care plan.

4. Dual planning was legitimate. Adoption and long-term fostering have materially different legal and practical consequences, but an agency may be satisfied that a child ought to be placed for adoption while recognising that the search may fail and fostering will then be necessary. A simultaneous search can avoid delay and an artificially restricted pool of adopters. The judge was entitled to conclude that this approach best served these children’s welfare.

5. The court upheld the section 26 contact order between D and S and added safeguards. Given the fundamental importance of their relationship, disputed contact should ultimately be determined by the court, including when considering adoption orders under section 46(6). Further applications, including any adoption applications, were reserved to the trial judge.

• Court of Appeal (Civil Division): By [2008] EWCA Civ 535, dismissed the mother’s appeal and upheld the placement orders, while directing additional safeguards concerning future contact and reserving further applications to the trial judge.
• County Court: On 12 October 2007, HHJ Richards dispensed with the mother’s consent, made placement orders for D and S, and made a section 26 contact order requiring contact between the children at least seven times each year.