D (A Child)

Care and placement orders severing family ties should be made only where nothing else will do. The court must compare realistic alternatives, including special guardianship and placement with foster carers abroad, rather than treating adoption as the automatic solution where a child cannot return home.

Continuity of care, preservation of the parental relationship, and the child’s ethnic and cultural identity may be highly significant. Delay is important, but the lifelong consequences of an irrevocable order must not be sacrificed merely to achieve earlier finality. A cross-border foster placement requires compliance with the consultation and consent requirements of Article 56 of Brussels II Revised.

The proceedings concerned the future care of a two-year-old child of Czech Roma heritage. The father had been found responsible for serious criminal conduct, domestic violence and sexual abuse, and the statutory threshold for intervention had been crossed. The mother and father sought the child’s return to the Czech Republic.

The local authority and guardian sought care and placement orders for adoption in England. Intermediate proposals were special guardianship by the child’s long-term foster carers or placement with foster carers in the Czech Republic. The hearing followed the Court of Appeal’s reversal of an earlier decision requesting transfer of the case to the Czech courts. The central issue was whether adoption was required, or whether a realistic alternative would meet the child’s welfare needs.

1. Return to the parents. The child could not safely be returned to the parents. The father continued categorically to reject most of the earlier findings, and the mother’s position remained affected by her relationship with him. The fact that the parents lived in the Czech Republic did not alter the welfare assessment.
2. Adoption and the governing test. Adoption was an exceptionally profound and irrevocable intervention because it could permanently sever the parental link. The court had to ask whether each realistic alternative would do. A care order and placement order could be made only if no other option would do, rather than because another option was merely less satisfactory.
3. Special guardianship. Special guardianship with the current foster carers was the preferred solution. It preserved the child’s stable and longstanding attachment, provided permanence without irrevocably severing parental responsibility, allowed continuing contact with the mother and sibling, and offered better prospects of preserving the child’s Czech Roma identity and family relationships.
4. Czech foster placement. If the foster carers did not apply for special guardianship, placement with suitable Czech foster carers was the next preference. Such placement could not be achieved through a care order, because subsequent placement decisions under a care order were delegated to the local authority. The court would instead need to use wardship proceedings.
5. Under Article 56 of Brussels II Revised, the Czech central authority had to be consulted and consent to the placement where required by Czech law. The court directed that suitable foster carers be identified and that the matter be restored for consideration. Any order would expressly leave questions of contact and discharge from foster care to the Czech court.
6. The court accepted that the chosen course caused further delay. However, the lifelong consequences of the decision justified that delay. Only if both intermediate options proved impossible would care and placement orders be made.

The court stated that its earlier decision of 18 December 2013 requesting transfer of the case under Article 15 of Brussels II Revised had been overturned by the Court of Appeal on 21 February 2014. The present hearing was conducted pursuant to that appellate decision.