Re CV (A Child) (Placement Order)

In care proceedings, the court must identify every realistic option for a child’s future care and evaluate each globally and holistically. Each option must be examined in sufficient detail to weigh its own advantages and disadvantages, then compared side by side with the alternatives. Where long-term foster care with the child’s current carers is a realistic option, it must be assessed specifically; a general analysis of long-term fostering, or treating the placement only as a contingency, is insufficient. The judgment must explain the evaluation and reasons for the final choice with clarity and rigour. A placement order was set aside because the judge’s treatment of long-term foster care with the current carers was unclear and inadequately analysed.

This was the mother’s appeal against care and placement orders made in respect of C, a three-year-old child with complex medical needs. C had lived for an extended period with specialist foster carers, Mr and Mrs D. The local authority and guardian supported adoption, while the mother argued that C should remain with the Ds in long-term foster care if rehabilitation was not possible.

The appeal concerned whether the judge had identified and evaluated the realistic options, including long-term foster care with the specific current carers, and whether the reasons for concluding that nothing else would do were adequate. After the hearing, evidence indicated that the Ds were prepared to continue caring for C.

The single judgment of Baker LJ, agreed by Carr LJ and Warby LJ, allowed the appeal on grounds 1 and 2, set aside the placement order and directed a rehearing.

1. The statutory framework required consideration of the welfare checklists in the Adoption and Children Act 2002 and the Children Act 1989, together with whether the interference with Article 8 rights was necessary, proportionate and justified. The requirement that nothing else would do did not permit adoption to be selected without a proper evaluation of the alternatives.
2. The principles in Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146 and Re H-W (Children), Re H-W (Children) (No. 2) [2022] UKSC 17 required a global and holistic evaluation of all realistic options. Each option had to be assessed for its own internal advantages and disadvantages and then compared side by side with the competing options.
3. The judge had recognised that C’s remaining with the Ds was strongly attractive, but had not clearly decided whether long-term foster care with those particular carers was a realistic option. She did not analyse its advantages and disadvantages as a distinct option. Treating it as an unknown foster placement or as a contingency was inconsistent with the need to evaluate it alongside adoption if it was realistic.
4. Post-hearing emails from the Ds satisfied the Ladd v Marshall criteria and reinforced that long-term foster care with them was by then unquestionably a realistic option. The Court of Appeal expressed no view on which option should ultimately be preferred.
5. The placement order was set aside and the matter remitted to Newton J for allocation to a different circuit judge. The rehearing had to involve a completely fresh evaluation of all realistic options, including any adoption application by the Ds or other options that might emerge.

1. Court of Appeal (Civil Division): The appeal was allowed on grounds 1 and 2. The placement order was set aside and the matter was remitted for a fresh hearing before a different circuit judge: [2022] EWCA Civ 930.
2. Family Court: HH Judge Gargan made care and placement orders. An application for permission to appeal was refused.