W - C (Children)

In adoption proceedings, “realistic” options should be identified and evaluated, ordinarily at an early stage. At the final hearing, the court must conduct a full welfare evaluation of the live options; it must not use “realistic” to avoid comparing them. A choice between adoption and long-term fostering requires a balanced assessment of the benefits and detriments of each, including sibling relationships. The analysis must apply the Adoption and Children Act 2002, section 1(4), with welfare paramount throughout the child’s life. Consent may be dispensed with only where the child’s welfare requires it. This entails assessing adoption against a less interventionist alternative and addressing proportionality under Article 8. An appellate court should remit an inadequately reasoned decision where the missing analysis depends on oral evidence unavailable to it.

The mother cared for two younger children, C, aged eight, and D, aged two, during proceedings concerning their future. The Recorder made a special guardianship order for C in favour of a maternal aunt and authorised D’s placement for adoption, dispensing with parental consent.

D’s children’s guardian appealed the decision concerning D. The appeal challenged the adequacy of the Recorder’s analysis rather than advancing adoption or long-term fostering as the inevitable outcome. The central issues were whether the Recorder had properly compared adoption with long-term fostering, considered sibling contact, and applied the statutory tests governing adoption and the dispensing of parental consent.

1. Appeal allowed. The decision authorising D’s placement for adoption was remitted for rehearing by a fresh tribunal. There was no appeal against the special guardianship order for C or the rejection of placement with the mother.
2. The Recorder had wrongly treated the question whether an option was “realistic” as continuing throughout the final hearing. Following Re R [2014] EWCA Civ 1625, that question should ordinarily be resolved at an early stage. Once the court is considering the options remaining before it, it must undertake an ordinary full welfare evaluation. It must not use the label “realistic” to avoid comparing adoption, long-term fostering and other live options.
3. The Recorder’s analysis of adoption and long-term fostering was inadequate. He reduced the issue to permanence and certainty versus sibling contact, failed to identify the particular benefits and detriments of each option, omitted long-term fostering from important parts of his reasoning, and announced a preferred outcome before completing the evaluation. A contact order could not substitute for the required assessment of the effect of adoption on D’s family relationships.
4. The relevant analysis had to be conducted under section 1(4) of the Adoption and Children Act 2002, giving paramount consideration to D’s welfare throughout her lifetime and addressing the effect of ceasing to be a member of her original family and the value and continuation of relevant relationships. The Children Act 1989 section 1(3) checklist was not the necessary preliminary framework for choosing between adoption and another form of long-term care.
5. The Recorder also misstated the test for dispensing with parental consent. Under section 52(1)(b) of the Adoption and Children Act 2002, the question was whether D’s welfare required consent to be dispensed with, which required comparison between adoption and something short of adoption. That statutory analysis also gave effect to the proportionality assessment required by Article 8 of the European Convention on Human Rights.
6. The Court of Appeal could not perform its own welfare reevaluation because the transcript of the key oral evidence was unavailable. The appropriate course was therefore a rehearing before a fresh tribunal.

1. Court of Appeal (Civil Division). On 28 February 2017, the guardian’s appeal concerning D was allowed and the decision authorising her placement for adoption was remitted for rehearing by a fresh tribunal.
2. Barnet Civil and Family Court. On 29 July 2016, Recorder Digney made a special guardianship order for C in favour of a maternal aunt and authorised D’s placement for adoption, dispensing with parental consent.