J (A Child : application for a care order)

Under Children Act 1989 section 38(6), the court cannot direct an assessment on a theoretical or hypothetical basis. A realistic resource must be identified, with sufficient information about the proposed assessment, timescale and cost.

In adoption proceedings, the court must undertake a holistic evaluation of all realistic options. Adoption is permissible only where the child’s welfare throughout life requires it and nothing else will do. Delay is not justified by a speculative prospect that further assessment or therapy may eventually make rehabilitation possible, particularly where delay risks greater emotional harm and reduces the prospects of a successful permanent placement.

The local authority sought care and placement orders for J, a child born in July 2015 who had lived with the same Irish foster carers since shortly after birth. The mother accepted that she had failed to protect J’s half-brother, R, from serious inflicted injuries, but sought an adjournment and a direction under section 38(6) of the Children Act 1989 for a mother-and-baby assessment in Ireland.

The proposed unit had not confirmed that it could undertake the assessment, and no evidence addressed its method, cost or timescale. The central issues were whether the assessment should be directed, whether the threshold for a care order was met, and whether J’s welfare required adoption rather than long-term fostering or further delay.

1. Section 38(6) application. The mother’s application was dismissed. The proposed Irish mother-and-baby unit had not agreed to undertake an assessment and no evidential foundation existed for the proposed placement. Without evidence of the available resource, assessment process, costs and timescale, the court could not carry out the statutory evaluation required by sections 38(6), (7A) and (7B) of the Children Act 1989. The court could not proceed on a theoretical or hypothetical basis.
2. Threshold. The local authority had to prove, on the balance of probabilities, facts establishing both significant harm or its likelihood and the required connection with parental care under section 31(2) of the Children Act 1989. The relevant date was July 2015. The mother’s accepted failure to protect R, her continuing position as a possible perpetrator of his injuries, the absence of meaningful therapeutic progress, continuing dishonesty and lack of insight established that J was at risk of significant harm from care that it would not be reasonable to expect a parent to provide.
3. Welfare and adoption. The court applied the welfare provisions in section 1 of the Children Act 1989 and sections 1, 21 and 52 of the Adoption and Children Act 2002. It undertook a holistic evaluation of the realistic options, including rehabilitation, long-term fostering and adoption. Rehabilitation would have required at least six to twelve months of further delay, with only a modest and speculative prospect of success. J was already three years old, strongly attached to short-term foster carers and in need of a permanent home.
4. The advantages of adoption, including a permanent family, clearly outweighed its disadvantages and the advantages of long-term fostering. J’s welfare required the mother’s consent to placement for adoption to be dispensed with. The father’s consent did not require dispensing with because he lacked parental responsibility.
5. A care order and placement order were made. The mother’s applications for an assessment and adjournment were refused.