D-S (A Child: Adoption or Fostering), Re

When choosing between adoption and long-term fostering, the court must make a rounded evaluation of the child’s welfare throughout life. The expression “nothing else will do” is a proportionality cross-check, not a substitute for that evaluation.

Adoption is not automatic for a very young child who cannot live with the birth family. However, the security, permanence and lifelong belonging it offers may be powerful considerations. The court must also confront the insecurity and divided relationships that fostering may entail. Evidence about the availability of particular placements is not usually required before the choice is made in principle. If a material evidential gap exists, the court should normally adjourn for it to be remedied.

C was an 11-month-old child whose parents could not provide adequate care because of their learning difficulties. The Family Court made care orders for C and her two older half-siblings. It approved long-term fostering for the older children but refused the local authority’s application for a placement order permitting C to be placed for adoption.

The judge preferred long-term fostering because it would preserve C’s relationships with her parents and siblings. He considered the professional analysis inadequate and believed that evidence about available foster and adoptive placements was lacking.

The local authority appealed with the support of the Children’s Guardian. The Court of Appeal considered whether the judge’s evidential, welfare and legal analyses were erroneous and, if so, whether it should remit the case or make the placement order itself.

1. Appeal allowed. The judge’s refusal of a placement order was set aside. His assessment contained fundamental errors of principle and did not provide the balanced and thorough welfare evaluation required by the Adoption and Children Act 2002.

2. The court must ordinarily decide whether adoption or fostering is right for the child as a matter of principle. Evidence about the availability of particular placements is not usually required. No unusual age, health, behavioural or sibling-group feature made such evidence necessary here. If the judge had identified a genuine evidential gap, he should have adjourned and directed that it be filled rather than decide despite it.

3. The professional assessments were adequate. They explained that fostering would preserve birth-family contact but would not provide the stability, consistency and lifelong belonging that C required. A court may depart from professional recommendations, but it must give good reasons. The judge wrongly treated the orthodoxy of the recommendations as a weakness.

4. There is no rule that every very young child who cannot return home must be adopted. Nevertheless, C’s age and capacity to form primary attachments made adoption’s benefits powerful considerations. The judge failed to weigh those benefits or the insecurity, possible placement changes and divided relationships inherent in lifelong foster care. C’s uncertain hearing, development and possible learning difficulties did not favour fostering.

5. The expression “nothing else will do” must not replace a rounded welfare evaluation. It operates as a proportionality cross-check. The judge instead treated the possibility that fostering “would do” as sufficient to exclude adoption.

6. The evidence was complete, the facts were undisputed and only one workable outcome existed. Remittal would cause harmful delay. Applying section 1 of the Adoption and Children Act 2002 and article 8 of the European Convention on Human Rights, C’s welfare throughout life required adoption. Its advantages were overwhelming, and the resulting interference with family life was necessary and proportionate.

7. The parents’ consent was dispensed with and a placement order made. No contact order was imposed. Contact could mitigate family separation, but an order might impede the greater priority of finding an adoptive family.

1. Court of Appeal (Civil Division): In [2024] EWCA Civ 948, allowed the local authority’s appeal, set aside the refusal of a placement order, dispensed with parental consent and made a placement order.

2. Family Court at Reading: HHJ Tolson KC made care orders for all three children, approved fostering for the two older children, refused a placement order for C and refused permission to appeal.