B (A Child) (care proceedings)

In care and placement proceedings, the court decides whether adoption is required in principle. It should not conduct a contest between prospective adopters and kinship carers or decide which proposed home is better. That does not permit the court to disregard an objective feature necessarily linked to a placement. Where proposed adopters have already adopted the child’s full sibling, the sibling relationship, and its corresponding loss under a kinship placement, are relevant to the statutory welfare assessment. A viable family placement creates no automatic right or presumption in favour of family care. The court must evaluate all relevant welfare factors, including lifelong effects, family relationships, permanence and delay, and determine the weight to attach to them. An appellate court will not interfere with a conclusion that was properly directed and plainly open on the evidence.

In care proceedings in Leicester, Her Honour Judge George had to decide whether B should be placed for adoption with the adoptive parents of H, B’s elder full brother, who had already been adopted. The alternative was a kinship placement with B’s father’s cousin, I, and I’s partner, R. That placement was assessed as viable and realistic.

On 21 August 2017 the judge made care and placement orders with a view to adoption by H’s adoptive parents. B’s father appealed, arguing that the judge had improperly compared the proposed placements, over-weighted the sibling relationship and the uncertainties and delay of kinship care, and failed to establish that adoption was necessary. The central issue was the application of Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983 where the proposed adopters already cared for a sibling.

The appeal was dismissed unanimously. The care and placement orders were upheld.

1. The Court of Appeal held that the judge had correctly applied Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, together with Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383 and Re G (Minors) (Interim Care Order) [1993] 2 FLR 839. In care and placement proceedings the court is concerned with adoption in principle, not ordinarily with the merits or identity of particular adopters. The proceedings should not become a dispute between prospective adopters and the local authority or a contest to determine the better placement.
2. That principle did not require the judge to ignore the fact that B’s only full sibling had already been adopted by the people offering to adopt B. The presence of H in B’s life was a necessary factual consequence of that placement and had to be considered under the welfare duty in section 1(4), particularly section 1(4)(f), of the Adoption and Children Act 2002. The corresponding loss of the sibling relationship under the kinship option was also relevant. Taking those matters into account did not amount to an impermissible comparison of the adopters’ merits.
3. The distinction between adoption in principle and adoption by H’s adoptive parents was, in these circumstances, more apparent than real. The judge nevertheless understood that she was making care and placement orders as a prelude to separate adoption proceedings, rather than deciding an adoption application.
4. A viable family placement gives rise to no automatic right or presumption that a child must be brought up by natural family. The option must be treated as realistic, but welfare throughout the child’s life remains paramount. The judge was entitled to balance the lifelong sibling relationship against the loss or continuation of other family relationships, cultural considerations, permanence, uncertainty and delay. The approach was proportionate and compatible with Article 8 rights.
5. The weight to be given to the competing welfare considerations was for the trial judge. The untested nature of the kinship placement and the potential delay merely added weight to the conclusion and were not treated as determinative. The findings, reasoning and conclusion were plainly open to the judge on the evidence.

1. Court of Appeal (Civil Division): On 17 January 2018, the appeal was dismissed and the care and placement orders were upheld. [2018] EWCA Civ 20.
2. Family Court sitting at Leicester: On 21 August 2017, Her Honour Judge George made care and placement orders for B with a view to adoption by H’s adoptive parents.