B (Children), Re

In care and placement proceedings, the court may revisit an earlier welfare assessment while proceedings remain incomplete, including a choice between adoption and long-term foster care. A finely balanced decision may be changed on significant fresh evidence; a dramatic new fact is unnecessary where professional evidence materially alters the assessment of placement stability, family relationships or comparative welfare benefits. The court must have regard to the statutory matters in s.1(4) of the Adoption and Children Act 2002, including the children’s biological-family relationships, but express citation is unnecessary if the reasoning shows that those matters were considered. For dispensation of parental consent, s.52(1)(b) requires a finding that the child’s welfare requires it. Weaker language is an error, but may be immaterial where the conclusion is clear.

Unmarried parents sought permission to appeal against care and placement orders made by His Honour Judge Appleby QC in relation to their two younger children. The judge had initially preferred long-term fostering, but later allowed the issue to be reopened after a new Children’s Guardian expressed a firm preference for adoption. Following further evidence, including changed psychological and family-relationship evidence, the judge approved adoption plans and made placement orders, purporting to dispense with both parents’ consent. The parents did not pursue their appeal against the decision to reopen the issue. They challenged the sufficiency of the fresh evidence and the judge’s approach to the statutory requirements for placement and consent. The central issue was whether permission to appeal should be granted.

1. Applications refused. Lord Justice Wilson gave the leading judgment, with Scott Baker LJ and Laws LJ agreeing.
2. In the court’s semi-inquisitorial jurisdiction under the Children Act 1989, the court may review even clear findings of past fact. It may therefore revisit a future care programme while proceedings remain ongoing. That was particularly so here because no full care orders had been made, contact issues remained, and the placement applications had not been dismissed. The judge was entitled to begin from his earlier conclusion and require significant evidence before changing it. The parents’ challenge to reopening the issue was no longer pursued, but the Court of Appeal endorsed the judge’s approach, citing Re S (Discharge of Care Order) [1995] 2 FLR 639.
3. The original welfare decision was acknowledged to be finely balanced. The judge therefore did not need a dramatic new factual development before changing his conclusion. It was sufficient that the psychologist had retreated from firm support for long-term fostering, the new guardian gave an apparently unshaken view that adoption was preferable if achievable, the risk of foster-placement breakdown appeared more significant, and the sibling relationship had weakened. The judge was entitled to weigh those matters against the continuing loss of direct family contact.
4. The failure expressly to refer to s.1(4) of the Adoption and Children Act 2002, including the relationships and their value under s.1(4)(f), did not invalidate the decision. The judgment showed that the loss of biological-family links was understood as the principal factor favouring long-term fostering.
5. Section 52(1)(b) required the judge to be satisfied that the child’s welfare requires consent to be dispensed with. The judge’s statement that adoption was in the children’s best interests used weaker language and was an error. Nevertheless, the error could not provide an arguable basis for a successful appeal, since the substance of the judgment made it fanciful that the judge would have reached any different conclusion if invited to use the statutory language. The father lacked parental responsibility, so only the mother’s consent was relevant.

• Court of Appeal (Civil Division): Applications for permission to appeal refused.
• Principal Registry, Family Division: His Honour Judge Appleby QC initially preferred long-term fostering on 30 July 2007, later permitted the issue to be reopened on 24 December 2007, and on 22 February 2008 made care and placement orders providing for adoption.