S-F (A Child)

Long-term removal from parental care does not automatically make adoption necessary or preferable to long-term fostering. The court must ask whether adoption is required in the individual child’s circumstances and must compare the realistic options through a child-specific welfare analysis. A conclusion that adoption is better throughout the child’s life must be supported by evidence, particularly reasoned social-work analysis; empirically validated research may assist. General statements about identity, permanence, security or stability, and citations showing adoption’s general benefits, cannot substitute for evidence about the child and the feasibility of each placement. The analysis should address the child’s need for parental contact and the practical availability of a placement capable of meeting it. First-instance evaluative judgments will be disturbed on appeal only for legal error or where the evidence cannot support the conclusion.

Following a care order made by the Family Court at Bristol, the local authority’s application for a placement order under the Adoption and Children Act 2002 was refused. The child had been removed from his parents and placed with a respite carer who was available to provide long-term foster care. The local authority preferred adoption and appealed, supported by the children’s guardian. The parents opposed the appeal. The central issue was whether the judge was wrong to prefer long-term fostering to adoption, particularly where the child required continuing direct contact with his parents.

Sir Ernest Ryder, Senior President, gave the leading judgment. Lord Justice Burnett agreed, and Lady Justice Gloster agreed with both judgments.

1. Disposition. The appeal was dismissed. The care order was not challenged. The issue was whether adoption, rather than long-term fostering, was required.
2. Adoption and fostering. The fact that a child requires indefinite or long-term removal from parental care does not determine that adoption must follow. The court must ask whether adoption is required in the child’s circumstances. There is no one-size-fits-all hierarchy that makes adoption automatically preferable to long-term fostering. The court endorsed the approach in Re P (placement orders: parental consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.
3. Evidence and welfare analysis. The benefits and detriments of each realistic placement option must be assessed by reference to evidence about the child. A proposition that adoption is preferable throughout the child’s life requires reasoned social-work opinion derived from a child-specific welfare analysis. Empirically validated research may assist. Generalised assumptions about identity, permanence, security or stability, and citations to other cases, cannot replace evidence and advice on the particular child.
4. Reports and records. Under the Adoption Agencies Regulations 2005, the permanence report and the adoption agency decision-maker’s record contain the analysis and reasoning supporting a placement-order application. They should be disclosed, scrutinised and available for cross-examination. Filing them with the court is good practice, and failure to file them is poor practice. Their absence contributed to the limited evidence before the judge.
5. Application and appeal. The child’s need for direct parental contact, his special needs and behaviour, and the feasibility and timescale of an adoptive placement capable of facilitating contact were material. Long-term fostering with the existing carer was a viable option supported by the evidence. The judge had applied the correct legal principles and reached a conclusion open to him. As Lord Justice Burnett explained, appellate intervention was justified only for legal error or where the conclusion was unsupported by the evidence.
6. Delay. Where welfare analysis supports a time-limited search for adoption, local-authority care planning should address the adverse impact of delay over the same period and should include concurrent planning.

1. Court of Appeal (Civil Division) — [2017] EWCA Civ 964: dismissed the local authority’s appeal and upheld the refusal of a placement order.
2. Family Court at Bristol — His Honour Judge Rutherford, case BS16C00493: made a care order but refused the local authority’s application for a placement order.