H (Children), Re

Before making a final care order with a plan for adoption, the court must have as clear a picture as reasonably possible of the proposed way forward. Adoption cannot be selected over long-term fostering without assessing the prospects of the adoption succeeding.

That assessment must address both the children’s ability to adjust to new parents and the family’s ability to accept the placement, particularly where continuing contact is contemplated. The balance between adoption’s security and the children’s need for family contact is for the court to decide. It cannot be left to the local authority as part of implementing the care plan.

Two children were subject to care proceedings after their parents’ long-standing drug and alcohol misuse and the unavailability of suitable family carers. The children were living with their maternal grandparents. The Reading County Court, on 9 November, made care and placement orders after rejecting the mother’s application for an adjournment to assess her capacity to care for the children.

The judge accepted that adoption offered greater long-term security than long-term fostering. He approved a plan for adoption with letterbox contact, while leaving open the possibility of more direct contact after a bridging placement. The parents appealed, arguing that the evidence did not permit a proper assessment of adoption, fostering and contact. The central issue was whether the court had sufficient information to decide between those alternatives.

1. Appeal allowed. The care order was discharged and replaced by an interim care order. The case was transferred to the High Court for an expedited hearing.
2. Although the court must not use an interim care order to supervise the local authority’s performance of its duties, it must distinguish implementation of a care plan from approving it. Before finally disposing of the matter, the court must be satisfied that it has a sufficiently clear picture of the way forward and that the material is as clear as can reasonably be expected. The extent of inquiry remains primarily a matter for the trial judge, but the court must not decide the case while material uncertainty remains about the children’s welfare.
3. The choice between adoption and long-term fostering required a proper assessment of the prospects of adoption succeeding. That involved considering the children’s ability to adjust psychologically to new parents and the loss of their natural family, and the parents’ acceptance of adoption, especially if ongoing contact was proposed. The children’s age, existing attachments and the family’s ability to support an out-of-family placement were material.
4. The court had to confront directly the competing needs for the security and belonging associated with adoption and for continued, potentially direct, contact with the parents, grandparents and half brother. Whether adoption was the right solution was a judicial decision. It could not be left to the local authority to find adopters first and decide afterwards what contact might be possible.
5. The judge had insufficient material to resolve that essential question. A short further assessment after the children moved from their grandparents to a bridging or short-term foster placement was appropriate. The Court of Appeal directed a joint report from a single expert addressing adoption without contact, adoption with contact, and adoption in a foster-placement context, followed by an early rehearing.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 1218: appeal allowed unanimously; the care order was discharged, replaced with an interim care order, and the matter transferred to the High Court.
• Reading County Court — order made on 9 November: care order made and the children placed for adoption. The Court of Appeal held that the judge lacked sufficient material to make that final decision.