A Local Authority v J & Y

When deciding between rehabilitation, foster care and adoption, the court must evaluate every realistic option against the children’s welfare throughout their lives and undertake a proportionate balancing exercise. Adoption is appropriate only where nothing else will do. The court may dispense with parental consent only where the child’s welfare requires it. Where parental and child rights under Article 8 conflict, the child’s rights prevail. A care order should be discharged only where there has been a material change in circumstances since it was made.

The Local Authority sought placement orders for two children already subject to care and placement orders made at an earlier hearing. The Court of Appeal had set aside the placement orders because the first-instance judge had failed to consider long-term foster care, while the care orders and findings of fact remained undisturbed. The father sought discharge of the care orders and opposed adoption; the mother, living abroad, also opposed the application. The central issues were whether circumstances had materially changed, and which realistic care option best served the children’s welfare.

1. Discharge of care orders. The court could entertain the father’s application only if there had been a material change in the circumstances of the parents or children since the relevant earlier decision. The evidence showed no such change. The parents continued to deny the established findings and remained unable to recognise or address the harm caused to the children. The application to discharge the care orders was therefore dismissed.
2. Welfare evaluation. The court considered return to the parents, placement with the paternal uncle, long-term foster care and adoption. The paternal-uncle proposal was not realistic because there had been no assessment and the evidence indicated that the children would in practice return to their parents. Rehabilitation carried a real risk of further significant harm. Long-term foster care preserved the parental relationship and left open possible future rehabilitation, but the parents’ unchanged stance made beneficial contact and rehabilitation highly unlikely.
3. Adoption and proportionality. Adoption offered greater permanence, stability and security than long-term foster care, although it would sever the children’s lifelong relationship with their parents and younger sister. The court gave that consequence particular weight and undertook the required balancing exercise. Adoption was nevertheless the only option consistent with the children’s welfare because nothing else would do.
4. Applying Yousef v The Netherlands [2003] 1 FLR 210, the court had regard to the parents’ and children’s Articles 6 and 8 rights, while recognising that the children’s rights prevailed where they conflicted with the parents’ rights.
5. The court dispensed with both parents’ consent under section 52 of the Adoption and Children Act 2002 and made placement orders. The Local Authority was not subject to a fixed time limit for seeking adopters, but was expected to reconsider long-term foster care if an adoptive placement could not be found within a reasonable period.

• Court of Appeal: On 27 October 2016 the father’s appeal against the placement orders was allowed, those orders were set aside, and the placement proceedings were remitted for rehearing because long-term foster care had not been considered. The appeal concerning the care orders was dismissed, and the findings of fact were not challenged.
• High Court (Family Division): On rehearing, the application to discharge the care orders was dismissed. Placement orders were made in respect of both children.