F (a child)

A placement order requires a present judicial conclusion that adoption, rather than a lesser alternative, is required for the child’s welfare throughout life. It may be made despite uncertainty about whether suitable adopters will be found, or a need for preparation before placement. It is premature, however, where necessary therapy will determine whether adoption will ultimately be right for the child, as opposed to long-term fostering. The practical benefits of enabling an early search for adopters, and the need to avoid delay, cannot dilute that threshold under the Adoption and Children Act 2002.

The father brought a second appeal against a placement order for L, a four-year-old child. The family proceedings court had made a care order, dispensed with parental consent, and made the placement order. HHJ Orrell dismissed the parents’ appeal from that order.

Psychological evidence showed that L required a substantial programme of therapeutic parenting. It was not then possible to predict whether, after therapy, adoption would be in her best interests or whether long-term fostering with skilled carers would be preferable. The local authority and guardian supported an immediate placement order so that prospective adopters could be identified and involved in the therapeutic process. The central issue was whether that evidence permitted a present finding that adoption was in L’s best interests.

Appeal allowed unanimously. Black LJ gave the judgment, with which Kitchin LJ and Rimer LJ agreed.

1. Under the Adoption and Children Act 2002, dispensation with parental consent required a conclusion that the child’s welfare throughout life required adoption rather than an option short of adoption. That conclusion had to be justified by the evidence at the time of the placement hearing.

2. The court applied the distinction drawn in Re T (Children: Placement Order) [2008] EWCA Civ 542. Uncertainty over whether an adoptive family can be found, even after substantial investigation and preparation, does not itself prevent a placement order. Nor is appropriate dual planning objectionable merely because an adoption search may fail. Those principles did not govern this case.

3. The evidence did not establish that adoption was presently the right welfare outcome. The unresolved issue was not simply the availability of suitable adopters. The therapy was needed before it could be known whether moving L from a secure therapeutic placement for adoption would serve her welfare, or whether long-term fostering would better meet her needs. This made the case indistinguishable from Re T and different from Re P (children: parental consent) [2008] EWCA Civ 535.

4. The family proceedings court and the judge had failed to give proper effect to that central uncertainty. Their conclusions that adoption was in L’s best interests were therefore wrong. The local authority’s difficulties in recruiting prospective adopters without a placement order, and the risk of delay, could not justify altering the statutory requirement. A premature order would also leave no obvious forum to decide the later welfare question and would end the guardian’s role.

5. The placement order, having been wrongly made and affirmed, was discharged. The case was not remitted because the local authority was unlikely to be able to establish the statutory case until therapy had progressed. The local authority could make a fresh application when it considered the time was right.

• Court of Appeal (Civil Division) Allowed the father’s second appeal and discharged the placement order: [2013] EWCA Civ 1277.
• Derby County Court HHJ Orrell dismissed the parents’ appeal against the placement order on 13 March 2013.
• Family Proceedings Court On 14 December 2012, made a care order and, after dispensing with parental consent, a placement order. No appeal was brought against the care order.