E (Through Her Children's Guardian) & Anor v A Mother & Anor

Adoption remains an option of last resort, but the child’s timetable is central. A court considering a non-consensual placement order must have proper evidence addressing every realistic option and the arguments for and against each. A prolonged rehabilitation plan requires solid evidence that the parents are committed, can sustain the necessary changes, and can do so within the child’s timetable. Domestic abuse must be addressed directly. For a young child, postponing the placement decision for up to 18 months is generally inappropriate because early attachments are crucial and delay is likely to prejudice welfare. Such delay is not ruled out in every conceivable case, but the circumstances justifying it would be difficult to envisage. The appeals were allowed and the matter remitted.

E had been in foster care under an interim care order since birth. The local authority sought care and placement orders on the basis of an adoption plan, supported by the children’s guardian. The parents opposed adoption and sought E’s return.

The Family Court at Liverpool accepted that the threshold for a care order was met but refused the placement order. It directed that E remain in foster care while a 12-to-15-month rehabilitation plan was pursued. The child and local authority appealed, challenging the assessment of the evidence, the treatment of professional evidence, and the proposed delay in deciding E’s long-term care.

1. Disposition. The appeals were allowed. The order of 25 June 2019 was discharged and the matter was remitted to another circuit judge for rehearing. The Court of Appeal gave no indication of the ultimate outcome.
2. Applicable principles. Adoption is an option of last resort. Where a care plan for adoption and a non-consensual placement order are sought, the court must have proper evidence addressing all realistically possible options and the arguments for and against each, followed by an adequately reasoned judgment. This reflected the principles in Re B [2013] UKSC 33 and Re B-S [2013] EWCA Civ 1146 (para [32]).
3. Appellate review. Assessment of evidence, the weight given to it, and inferences drawn from it are ordinarily matters for the first-instance judge. The appellate court may nevertheless intervene where there are compelling reasons. Here, the judge’s interpretation of the drug-testing evidence was unduly optimistic. The tests contradicted both parents’ accounts and did not support the conclusion that their drug use was improving.
4. Risk and professional evidence. Domestic abuse presents a recognised risk of direct and indirect harm to children and had to be addressed directly. The judge had not sufficiently grappled with the extensive history of domestic abuse. He was also wrong to discount the psychologist’s assessment and was unduly critical of the social worker and guardian, whose structured presentation followed professional guidance and whose report contained a proper analysis.
5. Child’s timetable. Postponing a final decision for up to 18 months to allow the parents to demonstrate change was plainly wrong in this case. Crucial attachments are formed during the first two years, and delay is likely to prejudice welfare under s.1(2) of the Children Act 1989 and s.1(3) of the Adoption and Children Act 2002. The court did not rule out every possible 18-month delay, but considered such circumstances difficult to envisage.
6. The evidence was not sufficiently solid to establish that the parents were committed and able to make and maintain the necessary changes within E’s timetable. The proposed prolonged rehabilitation plan therefore could not stand.

• Court of Appeal (Civil Division): In [2019] EWCA Civ 1557, the appeals were allowed. The order dated 25 June 2019 was discharged and the proceedings were remitted to another circuit judge for rehearing.
• Family Court at Liverpool: HH Judge Greensmith refused the placement order, directed that E remain in foster care, and adjourned the proceedings so that a prolonged supported rehabilitation plan could be considered.