N (Refusal of Placement Order)

A placement order may be made only where adoption is required by the child’s welfare throughout life. The court must undertake a rigorous and proportionate comparison of all realistic options. Adoption must be necessary; it is not enough that it has general advantages over long-term fostering.

The Adoption and Children Act 2002 requires particular attention to existing relationships. A sibling relationship is ordinarily capable of lasting throughout life. Where the evidence shows that adoption cannot realistically preserve sibling contact at the level required for the child, and long-term fostering can do so safely, the court may properly conclude that adoption is not the necessary option.

The local authority appealed against the Family Court’s refusal of a placement order for N, then aged nearly three. N and her older half-sister, G, had been removed from neglectful home conditions and placed together in foster care. The threshold for care orders was conceded.

The Family Court made a care order for N with a plan for long-term fostering, and directed generous and flexible sibling contact. It made a child arrangements order for G to live with her father, who lived some 200 miles away. The local authority and the children’s guardian supported adoption for N, while the mother opposed it.

The central issue was whether the judge had given excessive weight to sibling contact and failed to conduct a lawful comparative welfare analysis between adoption and long-term fostering.

1. Appeal dismissed. Baker LJ, with whom Elisabeth Laing LJ and Singh LJ agreed, held that the judge had undertaken the required welfare analysis and that there was no proper basis for the Court of Appeal to find that he was wrong.
2. Under sections 1(1) and 1(2) of the Adoption and Children Act 2002, N’s welfare throughout her life was paramount. Article 8 required the interference inherent in adoption to be necessary and proportionate. A placement order therefore required a rigorous comparison of the realistic options and could be made only where nothing short of adoption would meet the child’s welfare needs.
3. The judge had identified the available options, evaluated the statutory welfare factors, compared adoption and fostering, and revisited each child’s position in light of the other’s. A formal balance sheet was not compulsory. A judgment had to be read as a whole, provided that its reasoning enabled appellate scrutiny without requiring the appellate court to construct the analysis for itself.
4. The judge was entitled to regard the value to N of continuing her relationship with G as the magnetic factor. G’s wishes were a relevant but non-determinative consideration. The decisive issue was the evidence that N required ongoing sibling contact, and that an adoptive placement could not realistically provide it. The requirement for such contact, coupled with G’s continuing contact with the mother, would materially reduce the available pool of adopters. The adoption plan had not sufficiently addressed that difficulty.
5. The judge had also recognised adoption’s greater permanence and security, and fostering’s continuing professional involvement and risk of later change. On the evidence, however, long-term fostering was available, safe, and better able to preserve meaningful sibling and maternal contact. It followed that adoption was not shown to be necessary. The two adoption-and-contact options were likewise ineffective because they could not meet N’s contact needs.
6. The local authority was required to comply with the existing contact order. Given the professional evidence that sibling contact was essential, compliance should be scrutinised at N’s Looked After Child Reviews.

• Court of Appeal (Civil Division) — dismissed the local authority’s appeal against refusal of a placement order: [2023] EWCA Civ 364.
• Family Court at Peterborough — on 25 November 2022, dismissed the application for a placement order, made a care order for N with a long-term fostering plan, and made a child arrangements order for G to live with her father.