Y (Children), Re

Before making a placement order, the court must identify and evaluate every realistic placement option, including long-term foster care, and balance its advantages and disadvantages against adoption. The inquiry must be evidence-based and address the children’s welfare throughout their lives. A parent’s difficult conduct or failure to advance an alternative does not remove that duty. An ex tempore judgment need not follow a prescribed structure, but it must show that the realistic options were considered. Failure to consider a realistic alternative is an error requiring the decision to be set aside and remitted, even if the court might ultimately reach the same result.

The parents appealed against care and placement orders made in relation to their two children. They accepted that a care order was inevitable, but argued that the judge had failed to consider whether adoption was necessary and whether long-term fostering was a realistic alternative. The local authority had initially supported long-term fostering before changing its plan to adoption shortly before trial. The father was unrepresented and focused on immediate rehabilitation. The central issue was whether the first-instance judge had properly considered all realistic options before making placement orders.

Appeal allowed and remitted. The parents’ factual challenge did not succeed, and the care order was accepted as inevitable. The issue was the adequacy of the welfare analysis supporting the placement orders.

1. The judge correctly directed herself to the welfare principles under the Children Act 1989 and the Adoption and Children Act 2002. She also considered why immediate rehabilitation was unrealistic and outside the children’s timescales.
2. However, the judge’s balancing exercise dealt only with rehabilitation and adoption. Long-term fostering was a realistic option. It had recently been recommended by the social work professionals and the children’s guardian, despite the parents’ conduct and the absence of contact. Its possible benefits, including the prospect of future contact or rehabilitation, required evaluation rather than assumption.
3. The principles concerning ex tempore judgments were relevant. A judgment must be read as a whole and appellate courts should avoid narrow textual analysis: Re F (Children) [2016] EWCA Civ 546 and Piglowska v Piglowski [1999] 1 WLR 1360. The court also endorsed the emphasis on substance rather than structure in Re R (A Child) (Adoption: Judicial Approach) 2015 1WLR 3273. Those principles did not excuse the complete omission of a realistic placement option.
4. A parent’s decision to appear in person, or failure to put forward long-term fostering, did not relieve the court of its duty. The local authority had an absolute obligation to ensure that all matters relevant to the children’s welfare were considered, even where that might undermine its forensic objective.
5. The Court of Appeal was not in a position to conduct the missing balancing exercise itself. The placement orders were therefore set aside and the matter remitted for reconsideration. The court did not determine that long-term fostering was preferable; adoption remained a possible outcome.

1. High Court of Justice, Birmingham Civil Justice Centre: Care and placement orders made on 18 February 2016 in relation to the two children.
2. Court of Appeal (Civil Division): Appeal allowed because long-term fostering, a realistic alternative to adoption, had not been considered. The matter was remitted for further consideration.