M (A Child: Long-Term Foster Care)

When deciding whether adoption is necessary, the court must evaluate every realistic option by reference to the child’s welfare throughout life. The question is whether another course is both realistically possible and in the child’s interests.

Delay, the child’s age and the effect of postponement on placement prospects and future attachments form part of the overall welfare appraisal. The principle that adoption is permissible only when nothing else will do does not require pursuit of a remote or welfare-disadvantaging alternative.

A long-term fostering option should not be adopted without clear reasoning which addresses its uncertainty, insecurity and delay. Where that option was not properly investigated at trial, an appellate court may need to remit rather than determine the final placement itself.

The local authority appealed against Mr Recorder Harvey’s refusal of a placement order for a young child, although his care order remained unchallenged. The Recorder preferred long-term foster care, potentially preserving parental contact and the possibility of rehabilitation after the mother underwent lengthy therapy with a guarded prospect of success.

The local authority argued that the Recorder’s three judgments were inconsistent and failed properly to assess delay, the prospects of successful therapy, and the comparative advantages of adoption and fostering. It also complained that long-term foster care had not formed part of any party’s case and had not been raised for evidence or submissions.

The central issues were whether the Recorder had correctly applied the principle that adoption should be ordered only when necessary, and whether the Court of Appeal should itself make a placement order or remit the case.

1. Appeal allowed and case remitted. The Recorder’s refusal of a placement order was overturned. His three judgments did not disclose a sufficiently clear or coherent basis for choosing long-term foster care. It was unclear whether fostering was intended to preserve contact indefinitely, to await the outcome of the mother’s therapy, or to serve both purposes.

2. The proposed plan incorporated uncertainty, insecurity and potentially two years of delay. Clear reasoning was required, especially given the guarded prognosis for therapy. The Recorder did not adequately demonstrate that he had weighed that prognosis, the advantages of adoption for a child of this age, the disadvantages of foster care, and the adverse consequences of postponing a permanent placement.

3. The guidance in Re B-S [2013] EWCA Civ 1146, Re B [2013] UKSC 33 and Re G [2013] EWCA Civ 965 did not require the court to preserve every conceivable alternative to adoption. Necessity requires a sophisticated evaluation of all the circumstances. The relevant question is whether another course is realistically possible and in the child’s interests. An option may be theoretically possible yet too remote, insecure or otherwise contrary to welfare.

4. Delay must be considered under section 1(3) of the Adoption and Children Act 2002 and section 1(2) of the Children Act 1989. The welfare checklists, including the child’s age, provide a vital but non-exhaustive starting point. Improved prospects of successful adoption through speedy action must take their place in the overall appraisal and may, with other factors, justify adoption.

5. The Court of Appeal declined to make the placement order itself. Long-term foster care with parental contact had become a serious third option, but the evidence and submissions at trial had not been directed to its merits. The court could neither dismiss it summarily nor undertake the necessary investigation. A different judge was therefore to rehear the matter urgently on the facts as they then stood.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 1406, unanimously allowed the local authority’s appeal, overturned the refusal of a placement order and remitted the case for urgent rehearing before a different judge.
• Coventry County Court: Mr Recorder Harvey made a care order but refused the local authority’s application for a placement order. He subsequently supplemented his reasons and refused permission to appeal.