M'P-P (Children), Re

When deciding whether children should leave established carers for placement with relatives, the court must evaluate the children’s emotional reality as well as practical change. Under the Children Act 1989, this includes the likely effect of losing a primary attachment figure. Under the Adoption and Children Act 2002, it includes the value to the child of continuing a significant relationship.

Neither family placement nor the status quo has predetermined weight. Their importance depends on the evidence in the individual case. Distinct statutory welfare checklists must be applied separately so that material considerations do not disappear through an artificial merging of similarly lettered provisions. Where proceedings concern siblings, each child’s welfare remains a separate paramount consideration.

Two very young children had lived almost throughout their lives with the same foster carer, who wished to adopt them. Their paternal aunt, who lived in Belgium and had met them only once, applied to care for both under special guardianship orders. The judge preferred the aunt’s proposal, revoked the older child’s care and placement orders, and indicated that special guardianship orders would be made.

The foster carer appealed. The principal issue was whether the judge’s welfare analysis had adequately addressed the effect of removing the children from their only primary attachment figure and the value of preserving that relationship. The appeal also raised subsidiary arguments concerning sibling participation, Convention rights and alternatives to adoption.

1. Appeal allowed. McFarlane LJ, with whom Kitchin LJ and Sir Colin Rimer agreed, held that the welfare analysis was fundamentally flawed. The judge had not evaluated the likely effect on the children of removal from their primary and only attachment figure. Nor had he attributed value, from their perspective, to continuation of that strong and beneficial relationship.

2. The two statutory welfare checklists address distinct matters. Section 1(3)(c) of the Children Act 1989 requires attention to the likely effect on the child of any change in circumstances. That exercise must include the emotional effect of losing the established carer, rather than being confined to changes of home, language, culture and country. Section 1(4)(f) of the Adoption and Children Act 2002 requires separate consideration of the child’s relationships, including the likelihood and value of their continuation. Merging similarly lettered items in the two checklists had caused these matters to fall out of the analysis.

3. Continuity of care and avoidance of disruption to established bonds are important considerations, particularly for very young children. The court did not establish any general priority between attachment or status quo considerations and placement within the birth family. Each case turns on its evidence, and the weight given to each factor must reflect that evidence.

4. The argument that the older siblings were entitled to be joined was not entertained because it had not been raised below. McFarlane LJ nevertheless expressed grave doubts about it. Article 12 of the United Nations Convention on the Rights of the Child appeared to focus on a child directly subject to the decision, and an opportunity to be heard does not automatically entail party status. The challenge concerning the aunt’s article 8 rights could not affect the result because the judge had deliberately decided the case by reference to the children’s welfare.

5. The orders below were set aside and the applications remitted for an expedited rehearing before a different judge. Pending rehearing, the older child’s final care and placement orders and the younger child’s interim care order remained in force. At the rehearing, each child’s needs must be considered individually. The children are not a single entity merely because separation is not proposed.

1. Court of Appeal (Civil Division): Permission to appeal granted and appeal allowed in [2015] EWCA Civ 584. The orders below were set aside and the applications remitted for an expedited rehearing before a different judge.
2. Croydon District Registry: His Honour Judge Atkins revoked the older child’s care and placement-for-adoption orders and indicated that special guardianship orders would be made in favour of the paternal aunt for both children.