R (Children), Re

A placement order requires separate and rigorous consideration of the adoption welfare checklist and of whether the child’s welfare requires parental consent to be dispensed with under Adoption and Children Act 2002.

Dispensing with consent requires evidence that realistic alternatives have been considered and rejected. The court must be driven to the conclusion that nothing short of adoption is appropriate. A phrase suggesting only that adoption is likely to meet the child’s needs is insufficient if read alone. The judgment as a whole may nevertheless show that the correct test was understood and applied.

An appellate court will not interfere with a difficult welfare evaluation that falls within the trial judge’s broad discretion and is supported by the evidence.

The mother appealed care and placement orders made for her two younger children by Her Honour Judge Murfitt in the Chelmsford County Court. The parents accepted both the threshold facts and that they could not care for the children. The practical choice was between placement with the paternal grandparents and adoption outside the extended family.

The judge found that the grandparents’ positive bond with the children did not overcome concerns about their insight, ability to protect them from the father, accommodation and competing family needs. The mother contended that the judge gave insufficient weight to the positive factors and failed to apply the statutory requirements for a placement order, particularly the welfare checklist and the test for dispensing with parental consent.

1. Appeal dismissed. The care and placement orders stood. The judge’s conclusion that placement with the paternal grandparents would not meet the children’s particular needs was open to her on the evidence. Her assessment lay within the range of evaluative judgments and broad discretion available to her.

2. The grandparents’ emotional bond, previous practical care, experience and strong community references were properly weighed. The judge was entitled to find that they could not provide the above-average parenting needed after serious abuse and neglect, or safely manage the risk posed by the father. The assessment had not impermissibly imposed a foster-carer standard or shifted a burden of proof to the grandparents.

3. The judge had sufficiently considered the welfare matters in section 1(4) of the Adoption and Children Act 2002, including the lifelong effect of adoption, the loss of parental, sibling and wider-family relationships, and the relatives’ ability and willingness to provide a secure home. Her reasons could properly be read as a whole, although they appeared in different parts of her judgment.

4. Under section 52, welfare must require the dispensation of parental consent. That means that adoption is necessary and that no lesser alternative will do. The judge’s isolated statement that a placement order was most likely to meet the children’s needs was unfortunate, since that wording alone states an insufficient test. Read with the evidence and the remainder of the judgment, however, it showed that she had considered and rejected the available family and kinship options and had applied the correct test.

5. The trial judge’s recommendation that future sibling contact be considered deserved serious consideration by the local authority, adopters and any court later asked to determine that issue.

• Court of Appeal (Civil Division): appeal dismissed; the care and placement orders remained in force: [2013] EWCA Civ 1018.
• Chelmsford County Court: Her Honour Judge Murfitt made care and placement orders for the two younger children on 30 April 2013.