R and C (Adoption or Fostering), Re

When deciding whether to make a placement order, the court must determine the arrangements for continuing contact between the child and the birth family. Where contact is necessary, the court should set the template under Adoption and Children Act 2002, section 26. The possibility that adopters may later resist contact does not by itself justify refusing adoption.

Adoption does not necessarily entail complete severance from the birth family. The court must compare adoption and every realistic alternative through a robust, evidence-based evaluation of their respective advantages and disadvantages. It must consider the whole statutory welfare checklist, with the child’s welfare throughout life as paramount. Permanence, security, belonging, existing family relationships and the prospects of maintaining them are all material.

A local authority appealed against a Family Court judge’s refusal to make placement orders for two young siblings. The judge instead directed long-term foster-care plans, principally because adoption could not guarantee continuing direct contact with their two elder half-siblings. The authority’s plan was to place the younger children together only with adopters committed to six direct sibling contacts each year.

The judge also considered that the children’s mother could not be completely ruled out, although he found that she could not presently care for them safely. The local authority and children’s guardian contended that he had misunderstood the court’s powers over contact and had not conducted the required comparative welfare assessment. The central issues were whether potential uncertainty about future contact justified refusing placement orders and whether the Court of Appeal should determine the applications itself.

1. Appeal allowed. The judge’s central premise—that adoption involved the complete and irrevocable severance of all family ties—was wrong. Modern adoption may preserve direct relationships with members of the birth family. The possibility that adopters might later resist contact was insufficient, in the circumstances, to exclude adoption.

2. At the placement-order stage, the court has responsibility for deciding whether contact should continue and for setting the template for future arrangements under section 26 of the Adoption and Children Act 2002. It remains extremely unusual to impose contact upon unwilling adopters. That principle does not remove the court’s responsibility where the authority proposes to search only for adopters who accept the specified contact regime. The earlier decision in Re T and R was fact-specific and did not establish that adoption must be rejected whenever sibling contact is important.

3. The judge’s reference to permanence as social engineering was unjustified. Adoption’s distinctive permanence, stability and sense of belonging are legitimate welfare considerations. His description of the court’s function as confined to protection from harm also distorted the section 1(4) welfare checklist, which requires consideration of all relevant factors bearing on welfare throughout life.

4. The suggestion that the mother might eventually resume care was speculative and could carry no significant weight. The judge’s ultimate reasoning did not provide the robust and rigorous, side-by-side analysis of realistic options required by Re G [2013] EWCA Civ 965 and Re B-S [2013] EWCA Civ 1146.

5. The Court of Appeal had sufficient evidence to decide the applications. Adoption under the authority’s time-limited plan was the only option meeting both the children’s need for lifelong security and belonging and their need to maintain their sibling relationships. Long-term fostering could preserve contact but could not provide equivalent permanence.

6. The children’s welfare required dispensation with the mother’s consent. Placement orders and a section 26(2)(b) order for six sibling contacts annually were made. The authority was to search exclusively for adopters committed to that contact and to adopting both children, and to return to court if none were found within six months. The order also recorded the court’s view that direct sibling contact should continue after adoption.

1. Court of Appeal (Civil Division): The appeal was allowed, the Family Court’s order was set aside, and placement orders and a contact order were made: [2024] EWCA Civ 1302.
2. Family Court at Northampton: HH Judge Wicks made care orders for all four children, refused placement orders for the two younger children, and directed revised plans for long-term foster care. No neutral citation is stated.