In the matter of M (A Child)

When deciding between adoption and long-term fostering, the court must compare the realistic options side by side and carry out a global, holistic evaluation of the child’s welfare. The phrase nothing else will do is not a shortcut permitting one option to be selected without analysing its own benefits, risks and internal deficits. The assessment must be grounded in the actual evidence, including placement stability, risk of breakdown, contact and the child’s welfare throughout minority. Where the decision rests on a material misunderstanding of evidence and lacks adequate analysis, the appeal should be allowed and the case reheard before a different judge.

The Local Authority appealed from the Family Court at Canterbury, where HHJ Scarratt refused a placement order concerning four-year-old M and indicated that long-term foster care with substantial contact with her mother should be pursued. Subsequent information showed that M’s current foster carers could care for her for only about five years, prompting concern about the basis of the decision. The grounds alleged premature rejection of adoption, inadequate comparative welfare analysis under the Adoption and Children Act 2002, section 1(2), and inadequate reasons. The central issues were whether the decision rested on a misunderstanding of the evidence, whether the options had been evaluated linearly, and what appellate remedy was appropriate.

The appeal was allowed. The decision refusing the placement order was set aside and the applications for care and placement orders were remitted for an urgent rehearing before a different judge.

1. The appeal was not based merely on a foster carer changing position or a placement breaking down. Such a development alone is not an appropriate basis for an appeal, although a judge may rehear the case or a parent may apply to revoke a care or placement order. This case was different because the judge had misunderstood the unequivocal evidence of the foster carer and social worker.
2. The judge had based his decision primarily on the erroneous belief that the current foster carer would provide long-term care. His intervention in the Guardian’s evidence and subsequent communication to the Court of Appeal confirmed that he had heard evidence different from that actually given.
3. Once return to the mother’s care had been rejected, adoption and long-term fostering had to be evaluated side by side in a balanced, holistic manner. The phrase nothing else will do could not operate as a shortcut to the result. The approach described in In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889, and the related authorities including In re B-S [2014] 1 WLR 563, required a full assessment of the advantages, disadvantages and internal deficits of each realistic option.
4. The judgment lacked a rigorous and unsentimental assessment of the viability of maintaining the mother-child relationship through contact and of the countervailing welfare factors. It did not adequately address matters including placement stability, risk of breakdown, the long-term consequences of fostering compared with adoption, and the actual evidence concerning M’s welfare.
5. The deficiencies could not realistically be remedied by requesting fuller reasons. Applying the approach described in re O (A Child) (Judgment: Adequacy of Reasons) [2021] 2 FCR 766, a rehearing before a different judge was required. The court declined to give guidance on post-adoption contact because that issue was tangential to the appeal and had not been argued as a discrete issue.

• Court of Appeal (Civil Division) — allowed the Local Authority’s appeal and remitted the applications for care and placement orders for an urgent rehearing before a different judge.
• Family Court at Canterbury — HHJ Scarratt refused the Local Authority’s placement-order application on 3 June 2024 and directed preparation of a revised care plan. The judge later indicated that the decision might have been different after receiving information about the foster placement.