V (Children), Re

Adoption without parental consent is a last resort. It is permissible only where the child’s welfare requires consent to be dispensed with and adoption is necessary because no lesser arrangement will meet the child’s needs.

Long-term fostering and adoption cannot be equated in the security they provide. When choosing between them, the court must evaluate the likely benefits and harm of continuing parental contact, the permanence and sense of belonging offered by adoption, each child’s age and wishes, and the distinct needs of siblings who are to remain together. An appellate court must intervene where the first-instance evaluation is wrong, while giving due weight to the trial judge’s advantages in assessing the evidence.

The local authority sought care orders based on plans for the adoption of two sisters, aged nine and nearly five, together with placement orders. The children could not safely return to either parent. The county court nevertheless directed long-term foster care and refused placement orders because it considered that preserving direct contact, particularly with the father, outweighed the benefits of adoption.

The local authority appealed from the decisions culminating in the orders of 21 February 2013. The children’s guardian supported the appeal. The central issue was whether the judge was wrong to conclude that long-term fostering served the children’s welfare and that their welfare did not require adoption and the dispensing of parental consent.

1. Appeal allowed. The children’s welfare required adoption. The court substituted care orders based on care plans for adoption, made placement orders and dispensed with the parents’ consent under section 52(1)(b) of the Adoption and Children Act 2002.

2. Adoption against parental wishes is a last resort, appropriate only where nothing else will do and the child’s interests make it necessary. The case for adoption did not speak for itself merely because neither child could return home. The court therefore had to compare adoption carefully with long-term fostering and determine whether the judge’s evaluation was wrong.

3. The judge failed to give sufficient weight to the detrimental pattern of the mother’s contact. Despite some positive sessions, her behaviour had distressed and frightened the children, threatened their emotional welfare and undermined the security of their placement. Her limited insight and history of failing to accept help made recurrence likely. A cycle of suspended and renewed contact, accompanied by litigation, presented a realistic risk. A section 91(14) order under the Children Act 1989 would provide only a leave filter and would not remove that harm.

4. The father’s contact was positive, but its benefits were not sufficiently significant to outweigh the disruption associated with the mother’s contact. The assessment also had to reflect his earlier failure to protect the children.

5. Long-term fostering and adoption could not be equated in terms of security. Adoption gives a child permanent membership of the adoptive family, removes the possibility of an application to discharge a care order, changes the legal setting for parental contact and ends routine local-authority involvement. Those differences were especially important for the younger child, who otherwise faced most of her childhood in foster care.

6. The older child’s views required caution because she could not understand every legal consequence. They nevertheless showed no complete emotional barrier to adoption. Since the sisters were to remain together, the court had to balance their different needs without allowing the older and more articulate child’s position to obscure the younger child’s interests.

7. Black LJ and Longmore LJ concluded that the first-instance decision was wrong. Gloster LJ agreed with both judgments. Due weight was given to the trial judge’s evidential advantages, but those advantages could not preserve an erroneous evaluation.

1. Court of Appeal (Civil Division): By [2013] EWCA Civ 913, unanimously allowed the local authority’s appeal, substituted care orders based on adoption plans and made placement orders.
2. Sheffield County Court: HHJ Baker QC ordered long-term foster care, made care orders, required revised care plans and refused placement orders. The appeals challenged decisions dated 14 December 2012, 9 January 2013 and 21 February 2013.