D (A Child: Placement Order)

Before making an order leading to adoption, the court must rigorously evaluate every realistic placement and compare its advantages and disadvantages with those of adoption. For a proposed family placement, the court must assess the nature, likelihood and consequences of possible harm. It must also consider whether the risk can be reduced or its effects mitigated.

A single risk cannot be treated automatically as disqualifying. The court must determine the actual and manageable risk in the context of the placement’s strengths and available protective measures. Adoption may be approved only where it serves the child’s lifelong best interests and constitutes a necessary and proportionate interference with family life.

A child had remained in foster care since birth. His parents were unable to care for him, and the Family Court rejected placement with his maternal grandmother principally because it considered her unable to protect him from the parents’ harmful relationship. It made a placement order with a plan for adoption.

The grandmother appealed. She argued that the judge had omitted positive evidence and possible protective measures, had treated the risk of parental involvement as decisive, and had failed meaningfully to compare placement with her against adoption. The central issue was whether the placement order followed the rigorous evaluation and comparison required before adoption could be approved.

1. Appeal allowed unanimously. Peter Jackson LJ, with whom Popplewell and King LJJ agreed, held that the Family Court had not rigorously evaluated placement with the grandmother or meaningfully compared it with adoption. Her claim was remitted for an urgent rehearing before a judge nominated by the Family Division Liaison Judge.

2. The appeal could be decided without overturning the judge’s adverse findings about the grandmother. Those findings disclosed legitimate concerns, but the evaluation was incomplete. The judgment did not address material positive evidence, including improvements to her home and smoking, available family support, the parents’ geographical distance, her commitment to the child, or the possibility of protective orders. It also failed to consider the protective significance of her calls to the police or the favourable assessment by the second independent social worker.

3. Applying H-W (Children) [2022] UKSC 17, the court held that the judge had telescoped the required process. He treated the grandmother’s ability to protect the child from the parents as though it were the ultimate question and regarded any risk of parental involvement as fatal. The court instead had to evaluate the nature and likelihood of harm, its possible consequences, and the available means of reducing the risk or mitigating its effects.

4. The necessary inquiry included whether the parents could be kept at arm’s length, how likely interference was, how the grandmother might respond, and what harm limited unauthorised contact might cause. The court also had to consider whether supervision, support or protective orders could manage the risk and what benefits the child might obtain from relationships with his parents, siblings and wider family.

5. Having prematurely excluded the grandmother, the judge did not compare that placement meaningfully with adoption. Passing references to the statutory welfare checklists did not cure the absence of substantive analysis, and the judgment did not address proportionality. The Court of Appeal expressed no view about the proper outcome of the rehearing.

1. Court of Appeal (Civil Division): The grandmother’s appeal was allowed unanimously. Her claim to care for the child was remitted for an urgent rehearing before a judge nominated by the Family Division Liaison Judge.

2. Family Court at Liverpool: His Honour Judge Greensmith rejected placement with the grandmother and made orders implementing the plan for adoption. No neutral citation was stated.