T (A Child, by his Children’s Guardian) v Wirral Borough Council

In choosing between adoption and special guardianship, neither order has a statutory preference. The court must make a fact-sensitive welfare comparison, asking which order better serves the particular child. Adoption may be preferred for its enhanced security, legal permanence and lifelong consequences, even where the placement itself is secure and undisputed. Existing family relationships, including legal relationships with siblings, remain important but may be outweighed where the actual relationships will continue and the legal change is manageable. Article 8 requires a proportionate response to interference with family life, but does not mandate a particular order. An appellate court should respect a clear and fully reasoned welfare decision within the trial judge’s discretion, even where the balance is close.

Liam, aged 18 months, had lived since birth with maternal cousins alongside two older maternal half-brothers. The children were to remain with those carers throughout their childhoods. The older boys were to be subject to special guardianship orders, while the local authority sought a placement order for Liam with a view to his adoption by the same carers.

Recorder Harris-Short made care and placement orders for Liam, and special guardianship and supervision orders for the older boys. The Children’s Guardian appealed, arguing that the Recorder had favoured adoption, overstated its security, and undervalued Liam’s legal relationships with his half-siblings. The central issue was whether adoption or special guardianship best served Liam’s welfare.

Disposition. The appeal was dismissed. Peter Jackson LJ gave the lead judgment, with Gross LJ agreeing. McFarlane LJ agreed with the result and added concurring reasoning.

1. The statutory scheme contains no presumption that adoption or special guardianship is preferable. Each case must be decided on its particular facts by asking which order better serves the welfare of the particular child. The approach in Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54 was applied. The warning in Re M-J (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 56 that special guardianship should not be treated as the preferred family-placement option was also relevant.
2. The welfare analysis required by section 1(4) of the Adoption and Children Act 2002, read with Article 8 of the ECHR, required the court to weigh the advantages and disadvantages of both orders. Article 8 required proportionality but did not mandate a particular outcome. Special guardianship may be less intrusive, but adoption’s enhanced security, permanence and lifelong consequences could properly be given substantial weight.
3. The fact that Liam’s placement with the carers was undisputed removed an additional reason for adoption, but did not eliminate adoption’s advantages. The Recorder was entitled to regard the loss of legal relationships with Liam’s half-siblings as a lesser and manageable consideration because their actual family relationships would continue. Her conclusion remained valid even if the balance was closer than her judgment suggested.
4. The Recorder’s references to special guardianship as a lesser order and to a child’s right to parents raised concerns, but did not invalidate her decision. She had undertaken a clear and fully reasoned welfare assessment. An appellate court should not interfere where such a discretionary decision falls within the trial judge’s proper range of judgment.

McFarlane LJ added that Liam’s position differed fundamentally from that of his half-brothers because he had no live, past or likely future legal relationship with a parent. In his view, Liam’s need for a full lifelong legal parental relationship with the carers could only be met by adoption.

• Court of Appeal (Civil Division): The appeal was dismissed on 10 November 2017. Peter Jackson LJ gave the lead judgment; McFarlane LJ added concurring observations and Gross LJ agreed.
• Liverpool Civil and Family Court: Recorder Harris-Short made a care order and placement order for Liam, with a view to adoption by his carers, and special guardianship and supervision orders for his two older half-brothers.