DF And GF (Children - Placement Order Or Special Guardianship Order), Re

There is no presumption that adoption or special guardianship is preferable in a particular category of case. The court must decide which order best meets the individual child’s welfare needs. Relevant considerations include permanence, security, the carers’ ability to exercise parental responsibility, the risk of future disruption or litigation, and the effect of adoption on wider family relationships. The so-called skewing effect of adoption is important but remains one factor in the welfare assessment. Where the welfare interests of siblings conflict, the court must balance them and select the least detrimental alternative. Special guardianship may provide long-term family placement, but it does not necessarily provide the same permanence or protection as adoption.

The local authority sought care and placement orders concerning two children. The younger child, GF, had been cared for by her maternal aunt and uncle, NG and LG, who wished to adopt her. The mother, the older child DF, and the Children’s Guardian supported special guardianship, principally to preserve family relationships and sibling contact.

The court had previously made findings concerning the mother’s clandestine contact with GF’s father and the risks posed to the children. The central issue was whether GF’s welfare required a placement order leading to adoption or a special guardianship order. Related questions concerned contact with the mother and DF and the dispensing of parental consent.

1. Outcome. A placement order was made in relation to GF, and the parents’ consents were dispensed with because GF’s welfare required placement for adoption. A full care order was made in relation to DF. The aunt and uncle were given broad discretion within a framework for contact.
2. Choice between adoption and special guardianship. The court applied the guidance in Re S (Adoption Order or Special Guardianship Order) (No 1) [2007] 1 FLR 819 and Re S (Adoption Order or Special Guardianship Order) (No 2) [2007] 1 FLR 855. There is no presumption or automatic response. The order must be selected by applying welfare to the particular facts. The familial distortion or skewing caused by adoption is relevant, but is only one factor. The greater permanence and protection from future litigation available through adoption may be decisive in a finely balanced case.
3. Welfare assessment. GF required complete security, stability, certainty and predictability. The court considered the mother’s continuing denial of the earlier findings, her unreliability and the risk that she or GF’s father might undermine the placement. Indefinite restrictions under s.91(14) of the Children Act 1989 and control over GF’s name would not provide equivalent security. The court rejected the argument that adoption would necessarily create unacceptable confusion about family relationships.
4. Conflicting sibling interests. Applying the approach discussed in Birmingham City Council v H (A Minor) [1994] 2 AC 212, and the least-detrimental-alternative reasoning in Re T and E (Proceedings: Conflicting Interests) [1995] 1 FLR 581, as expressly endorsed in Re A (Children) (conjoined twins: surgical operation) [2001] 1 FLR 1, the court balanced the children’s interests. GF’s younger age and greater emotional vulnerability meant that her welfare could not be subordinated to DF’s interests.
5. Contact. GF was to see her mother approximately every two months and DF approximately monthly, with three of the mother’s annual visits capable of including DF. NG and LG retained discretion to increase, vary or withdraw contact according to GF’s welfare and the circumstances.

First-instance decision of the High Court (Family Division). The judgment refers to earlier proceedings and a judgment dated 1 May 2013, but no citation for that decision is stated.