T and R, Re (Refusal of Placement Order)

A placement order requires a proportionate welfare assessment. Adoption is a last resort and is justified only where no other realistic placement will meet the child’s needs. The child’s age and adoptability create no presumption that adoption is the normal outcome.

The assessment may give decisive weight to the likely loss of essential sibling relationships, family contact and cultural heritage. Statutory powers for post-adoption contact do not provide a reliable assurance that contact will continue, because an order imposing contact on unwilling adopters remains extremely unusual.

The local authority sought placement orders under section 21 of the Adoption and Children Act 2002 for two young siblings, T and R. Their four older sisters were to remain in long-term foster care. The parents could not safely care for any of the children.

Although the professional witnesses ultimately supported adoption for T and R, they regarded sibling contact and the preservation of the children’s traveller culture as important. HH Judge Richards refused placement orders on 28 August 2020. He concluded that long-term fostering better met the children’s welfare needs because adoption could not reliably preserve those relationships and their cultural heritage.

The local authority and the children’s guardian appealed. The central issue was whether the judge had erred in concluding that adoption was not the only realistic option capable of meeting T and R’s needs.

1. Appeals dismissed. The judge was entitled to find that adoption was not the only realistic welfare option for T and R. He had identified the advantages and disadvantages of adoption and long-term fostering, and had not omitted any material consideration. The fact that adoption offered permanence did not determine the outcome.

2. A placement order requires a strict and proportionate welfare evaluation. Adoption severs legal family ties and is a last resort, justified only where nothing else will meet the child’s needs. The judge was entitled to give substantial weight to the evidence that continuing sibling contact was central to the children’s psychological development, and to the value of contact with their parents in retaining their traveller culture and heritage.

3. The judge had accurately applied the settled approach to post-adoption contact. Sections 26 and 51A of the Adoption and Children Act 2002 did not remove the practical uncertainty. Following Re B (A Child (Post Adoption Contact) [2019] EWCA Civ 29, an order imposing contact on adopters who did not agree remained extremely unusual. The judge could therefore treat the risk of losing vital contact after adoption as real and significant.

4. In proceedings under Part 4 of the Children Act 1989 and the Adoption and Children Act 2002, the family judge bears responsibility for deciding the child’s future. A judge may depart from a professional consensus after conducting an independent welfare assessment and giving clear reasons. This decision disclosed no error warranting appellate intervention.

5. The court also refused the late applications for separate representation of the older siblings and for an adjournment. In the particular circumstances, their arguments had been advanced by the parents and delay would have been disproportionate and contrary to T and R’s interests.

• Court of Appeal (Civil Division) — dismissed the local authority’s and children’s guardian’s appeals in [2021] EWCA Civ 71.
• Family Court at Norwich — HH Judge Richards refused placement orders for T and R on 28 August 2020, while approving long-term foster care for the four older siblings. On 21 September 2020 he refused permission to appeal.