H (Children: Placement Orders), Re

A court considering whether to revoke placement orders must assess each child’s welfare individually. Similar risks within a shared home do not make the welfare consequences the same for every child.

Where revocation would abandon an immediately available adoption plan for children whose opportunity for adoption is narrowing, rehabilitation must have a realistic, evidence-based prospect of success within an acceptable time. A plan dependent on extensive monitoring, uncertain future change and a later local authority decision creates delay and uncertainty contrary to the welfare principle in the Adoption and Children Act 2002.

An appellate court will not disturb a careful evaluative decision without a significant error of reasoning. Further evidence requires a principled basis for admission; merely keeping the appellate court informed is insufficient.

The Children’s Guardian appealed orders made by His Honour Judge Tolson KC concerning three young children. The two boys had been in foster care since 2021 and were subject to care and placement orders. On the mother’s application, the judge revoked their placement orders and directed a care plan for rehabilitation to her care. G, their younger half-sister, had remained with the mother since birth; the judge made a supervision order rather than a care order with an adoption plan.

The Guardian challenged both outcomes. The local authority supported the appeal concerning the boys but opposed it concerning G. The central issues were whether the judge’s risk and welfare assessments were sustainable, and whether the proposed rehabilitation plan for the boys justified abandoning adoption.

Appeal allowed in part. The court dismissed the appeal concerning G, but allowed it concerning the boys and restored their placement orders.

1. The judge’s decision that G could remain with the mother under a supervision order was within the proper bounds of evaluative judgment. He had recognised the mother’s dishonesty, continuing vulnerability and the risks arising from her relationships, but was entitled on the evidence to give weight to the improvement shown and to the good care G had received. No significant error of reasoning justified appellate intervention.
2. The boys’ position was materially different. They had waited about two and a half years for permanence, had been prepared for adoption, and needed skilled and stable parenting. Their adoption plan could only be displaced by rehabilitation if success could be predicted with a high degree of confidence within an acceptable time.
3. The proposed rehabilitation plan was not a realistic final care plan. It required a complex programme of monitoring the mother’s care of G, the return of B, and the fathers’ position, followed by a future local authority decision about whether and how to return the boys. That process entailed serious delay, uncertainty, possible further proceedings and a speculative prospect of reunification. It therefore failed to give proper effect to the delay principle in the Adoption and Children Act 2002.
4. The judge had also erred by treating the risks to the boys as materially equivalent to those faced by G because they would live in the same home. The risks of family conflict and instability may have overlapped, but the consequences did not. For the boys, delay could destroy a fast-narrowing opportunity for adoption, while a failed rehabilitation could deprive them of a permanent family altogether.
5. The court refused permission to rely on further evidence. The test in Ladd v Marshall, [1954] 1 WLR 1489, governed the issue. Keeping the court informed was not a principled basis for admitting disputed material that would require further investigation and potentially a remittal.

The local authority’s out-of-time Respondent’s Notice was dismissed.

• Court of Appeal (Civil Division) — In [2023] EWCA Civ 1245, dismissed the Guardian’s appeal concerning G but allowed it concerning the boys, restoring their placement orders.
• Family Court at Peterborough — His Honour Judge Tolson KC, in a reserved judgment given on 12 July 2023, made a supervision order for G and revoked the boys’ placement orders, directing a care plan for their rehabilitation to the mother.
• Family Court — On 10 December 2021, Her Honour Judge Davies made care and placement orders for the boys in the earlier care proceedings.