LR v A Local Authority & Ors

When deciding a child’s welfare where adoption is proposed, the court must identify every relationship relevant under the statutory welfare checklist. It must then assess both the likelihood of each relationship continuing and its value to the child.

A strong bond between a young child and a foster carer may be a relevant relationship, including where the foster carer is being assessed as a prospective adopter. The court must weigh the consequences of disrupting that attachment and the value of preserving it against the competing realistic options. A welfare decision is unsafe where a material option, and evidence bearing on it, has not been properly analysed in a finely balanced case.

R, a very young Polish/Romanian child, had lived with LR, her foster carer, for about ten months. The local authority’s preferred plan was adoption and it was assessing LR as a prospective adopter. The Family Court instead made a care order and refused a placement order, approving R’s long-term foster placement in Poland with her older half-siblings.

LR, who had not been a party below, sought permission to appeal out of time. Her principal contention was that the judge had not considered her relationship with R, the prospect of R remaining with her, or the effect of ending that primary attachment. The central issue was whether the welfare evaluation had taken account of all realistic options and relevant relationships.

1. Appeal allowed. LR had a real interest in the outcome despite not having been a party below. Permission to appeal and an extension of time were granted. The appeal had considerable merit and the delay after LR obtained legal representation did not preclude an extension.

2. Under section 1(4)(f) of the Adoption and Children Act 2002, the relationship between R and LR was plainly relevant. The evidence showed a strong and significant bond. The judge was therefore required to consider both the likelihood that it would continue and the value to R of its continuing.

3. The judge’s first judgment proceeded on the mistaken basis that R had to move. Although the second judgment recognised that R might remain with LR, it did not evaluate the specific strengths of that placement, the avoidance of any further move, the loss of R’s primary attachment relationship, or the likelihood that LR would adopt her. The court distinguished the uncertainty of final approval and matching from the need to assess a realistic proposed option.

4. This was a finely balanced welfare decision. The omitted matters could have tipped the balance between adoption by LR and foster care in Poland. The judge’s failure to analyse them made the order unsafe. It was unnecessary to decide the remaining grounds concerning cultural background, sibling relationships and alternative legal frameworks.

5. The care-order and placement-order applications concerning R were remitted for rehearing, with allocation to be determined by the Family Division Liaison Judge for London. The rehearing must undertake a fresh analysis of all options; the court expressed no view on its outcome.

• Court of Appeal (Civil Division): allowed LR’s appeal from the West London Family Court, granted her permission to appeal and extended time, and remitted the care-order and placement-order applications for rehearing: [2019] EWCA Civ 525.

• West London Family Court (HHJ Rowe QC): on 18 October 2018 made a care order for R, refused a placement order, and approved long-term foster care in Poland. The judgment was set aside as unsafe because the welfare analysis omitted R’s relationship with LR and the proposed placement with her.