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Concurrent affairs


The Court of Appeal had to look at what happens or what should happen, when there is a conflict between the Local Authority plan for a child and what the foster carers (who had signed up as concurrent carers, or ‘foster to adopt’ under the new language of the statute) thought the plan should be.


Re T (a child: Early Permanence Placement) 2015

  1. The facts can be stated quite shortly. T was born on 20 November 2014. T’s parents signed an agreement in accordance with section 20 of the Children Act 1989 the next day, 21 November 2014, and T was placed the same day with a married couple I shall refer to as Mr and Mrs X.
  2. Mr and Mrs X had been approved as adopters by the local authority on 14 November 2014. Shortly before T’s birth, on 17 November 2014, they were invited by the local authority, and agreed, to care for T, on his birth, as foster carers with a view to adopting him if adoption was required: what is known as an early permanence placement. T, as I have said, was placed with them on 21 November 2014. The local authority commenced care proceedings, with a plan for adoption, on 3 December 2014. Mr and Mrs X signed an early permanency placement agreement the same day. On 18 December 2014 an interim care order was made. It remains in place. T remains with Mr and Mrs X.
  3. On 29 January 2015 T’s paternity was established by DNA testing. At an adjourned case management hearing the next day, 30 January 2015, the father indicated that he did not wish to be assessed as a carer for T, but he put his parents forward for assessment. An initial viability assessment of the paternal grandparents was completed on 13 February 2015. It was positive. The full kinship assessment of the paternal grandparents was completed on 1 May 2015. Again, it was positive. Following a professionals’ meeting on 8 May 2015, the local authority told Mr and Mrs X that it had abandoned its plan for adoption in favour of a placement with the paternal grandparents under a special guardianship order. This plan is supported by both the mother and the father, who accept that neither of them is able to care for T. The position of T’s guardian is that the court does not at present have before it the evidence upon which to make a proper evaluation of what the guardian says are the two realistic options: a family placement with the paternal grandparents or adoption by Mr and Mrs X.
  4. On 20 May 2015 Mr and Mrs X issued an application for leave to apply for an adoption order (see sections 42(4) and 44(4) of the Adoption and Children Act 2002). The application came before Judge Troy on 22 May 2015. By then the care proceedings had been on foot for a little over 24 weeks. She made two orders. In one she gave Mr and Mrs X leave to apply for an adoption order. In the other she joined them as parties to the care proceedings. In accordance with directions she gave on that occasion, the matter came back before Judge Troy for directions on 1 June 2015. The paternal grandparents indicated their wish to apply for a special guardianship order (their formal application followed on 19 June 2015). Judge Troy joined them as parties to the care proceedings and consolidated the care proceedings and the adoption proceedings. She extended the time limit for the proceedings (see section 32(5) of the 1989 Act) to 34 weeks.
  5. On 22 May 2015 Mr and Mrs X gave the local authority notice in accordance with sections 44(2) and 44(3) of the 2002 Act.


There’s quite a lot in there, so I’ll break it down.

The Children and Families Act 2014 tells Local Authorities that they must actively consider looking for a “foster to adopt” foster placement when they are placing a child. That’s a set of foster carers who are also approved as adopters, with a view to if things pan out that the child can’t be placed within the family, those carers will go on to adopt the child. The idea is that it reduces uncertainty and delay for the child and cuts down the number of moves.

The Local Authority did that in this case (and did nothing wrong in doing so – that’s what the Act tells them to do). The foster carers entered into the arrangement thinking that they would probably go on to adopt the child.

The child’s grandparents put themselves forward as carers, the Local Authority assessed them and considered that they would be able to care for the child.

The Local Authority told the foster carers that the plan was no longer adoption, but was placement within the extended family.

The foster carers disagreed and put in their own private application to adopt.

The Judge gave the foster carers the leave of the Court to make that application.

Then the Local Authority, the father and the grandparents appealed.



The appeal arguments of the LA, father and grandparents were these:-


  1. The grounds of appeal and the parties’ submissions
  2. As I have said, the father, the paternal grandparents and the local authority made common cause. In large measure their submissions were very much to the same effect and made the same points. I shall take them together.
  3. Their submissions can be summarised as follows:i) Judge Troy was wrong to give Mr and Mrs X leave to apply for an adoption order. Their application was premature and should not have been considered until such time as the court had determined that T’s future welfare required his adoption rather than a family placement. That process has not been in any way altered by the implementation of the statutory early permanence placement scheme. Mr Tyler adds that, if the appeal against Mr and Mrs X’s joinder is successful, their application for an adoption order will be left hanging in the air. So, he submits, on that ground also the appeal on this point should succeed.

    ii) Furthermore, Mr and Mrs X had failed to demonstrate that they had a real prospect of success in relation to an application for an adoption order, and that T’s welfare required their being given leave to apply for, such an order.

    iii) Judge Troy was wrong to join Mr and Ms X as parties to the care proceedings and failed to consider the procedural ramifications and consequences of doing so.

    iv) Judge Troy failed to have sufficient regard or attach appropriate weight to the authorities about the primacy of family placements.

    v) Judge Troy failed to have sufficient regard or attach appropriate weight to the fact that Mr and Mrs X were temporary foster carers and that in the early permanency placement agreement dated 3 December 2014 they had expressly agreed that their adoption of T would be contingent on his not being rehabilitated to his family.

    vi) On the contrary Judge Troy gave excessive weight to the facts (a) that Mr and Mrs X were approved adopters and that the placement had been made by way of an early permanence placement, (b) that they had cared for T for 6 months and (c) that there was evidence of attachment between T and them.

    As the argument developed, it became apparent that there was a degree of overlap in these submissions.

  4. By way of elaboration, a number of points were made which it is convenient to take together.
  5. Mr Tyler submitted that it is wrong in principle to allow state-sanctioned carers to acquire the right to set themselves up against a family member as a potential permanent carer for a child simply by virtue of an unexceptional period of time caring for an unexceptional child in an unexceptional case. Particularly is this so, he says, where, as here, the aspiration of the foster carers is the non-consensual adoption of a child outside his birth family. As the father put it in his grounds of appeal, Mr and Mrs X are the product of the care process and should not be part of it. According to Mr Tyler, there is simply no place in the statutory process under Part IV of the 1989 Act for foster carers who are not otherwise entitled to participate by virtue of family status, statutory responsibilities, or relevant social work or other expertise.
  6. Mr Donnelly submitted that the analysis of adoption as an option in care proceedings is limited to consideration of adoption in principle and does not involve an assessment of the individual merits of particular proposed adopters. Least of all, he submitted, should care proceedings become, as would be the consequence of Judge Troy’s order, an arena in which prospective adopters should be enabled to probe alleged deficits in a family placement and compare it unfavourably with what they could offer. It is the children’s guardian whose task it is to scrutinise the local authority’s plan and, if appropriate, criticise it and invite the court to reject it. To like effect Mr Tyler submitted that the proper people to test the local authority’s assertions, assessments and care plans, in order to assist the process of quasi-inquisitorial judicial critical analysis in the care proceedings, are the parents and the child(ren), the latter through the children’s guardian. Miss Anning made much the same point when she submitted that the very idea of a competition between the birth family and prospective adopters at the stage of deciding whether a child should be placed for adoption is to shift the focus away from a true analysis of what is fundamentally in the child’s best interests in favour of the competing views of the adults. And, she suggested, it ran the risk of a simple comparison as to which placement would be better for the child, the very thing that all the jurisprudence demonstrates is not the right question (see, for example, Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, referred to below).
  7. Accordingly, it was submitted, Mr and Mrs X’s joinder to the care proceedings serves no useful purpose; it does not provide a means for the court to consider an option that it otherwise would not. Moreover, there is, they say, no need for Mr and Mrs X to be parties to the care proceedings to demonstrate that they are suitable prospective adopters for T, for they have already been positively assessed. If and to the extent that the court needs to consider adoption as an alternative to a family placement all it needs to know is that T has the best prospects of being adopted given Mr and Mrs X’s wish to adopt him.
  8. As Mr Donnelly put it, the fact that this was an early permanence placement did not give Mr and Mrs X an elevated status, nor did that (or any of the other matters) create a ‘status quo’ requiring the kind of balancing of ‘status quo’ and ‘family’ contemplated in Re M’P-P (Children) [2015] EWCA Civ 584 (see below). In reality, as Mr Tyler put it, the asserted ‘status quo’ and attachment in the present case do not differ in any significant way from what exists in a large proportion of similar care cases where a child has been successfully fostered for a short, interim, period.
  9. Mr Tyler conjured up the spectre of social engineering. He suggested that parents in care proceedings will be very much less likely to agree to the potential benefits of a fostering for adoption placement. He pointed to the inevitability of delay given the requirements of sections 42(4) and 44(4) of the 2002 Act



Summarising these very briefly – it is the task of the Court to decide what orders should be made, and Mr and Mrs X (the carwers and would-be adopters) come into the equation IF AND ONLY IF the Court is satisfied that nothing other than adoption would do. To bring Mr and Mrs X into the equation before that point potentially muddies the waters and gets into a social engineering situation where the Court is deciding which family has more to offer the child, Mr and Mrs X or the grandparents.


The arguments against the appeal were made by the adopters and the Children’s Guardian. (I pause here to note that the collective brainpower in the Court room must have been making the air crackle)


  1. Essentially, Miss Scriven and Miss Fottrell submitted that Judge Troy was right to decide as she did and for the reasons she gave. There are, they said, two realistic options before the court and Judge Troy was right in her approach and in recognising that the court, in the light of the statutory framework and the authorities, had to evaluate both the realistic options and to assess each in the context of the other. How, Miss Scriven asked rhetorically, was the court to do this, as she put it, balancing the competing arguments for and against those two options, unless Mr and Mrs X were able to participate in the care proceedings and make representations?
  2. Miss Scriven submitted that the local authority’s approach was far too rigid and absolute, and inappropriately minimising of Mr and Mrs X’s role. As the guardian put it, whatever the strength of the arguments in favour of a family placement, it cannot be said that Mr and Mrs X’s application has no prospect of success. After all, as Miss Scriven pointed out, Mrs X is the only mother T has ever known. What is required is for each case to be looked at in a case-specific way. Reliance was placed on what McFarlane LJ had said in Re M’P-P (Children) [2015] EWCA Civ 584, paras 46-50 (see below). Reliance was placed on what was said to be the reality that T and Mr and Mrs X have, as a result of Mr and Mrs X caring for T, an established family life together. Mrs X, it is said, is at the centre of T’s life. Miss Fottrell said that Mr and Mrs X are de facto parents and if T is to be removed from them they need to be heard, particularly if what is being proposed is T’s placement, albeit within his family, with people with whom he has no relationship. T’s welfare requires this reality to be carefully examined, and this requires the participation of Mr and Mrs X, precisely because it is not an argument that will be supported either by the local authority or by the birth family, all of whom will be arguing vigorously against it. As Miss Fottrell put it, it is difficult to see how Mr and Mrs X’s case could be properly heard if they were not joined to the care proceedings.
  3. Furthermore, and relying upon Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] QB 608, [2005] 1 FLR 308, it was said that there exists between Mr and Mrs X and T ‘family life’ within the meaning of Article 8, which in turn, it is said, entitles them to a fair hearing in accordance with Article 6: see Soderback v Sweden (1998) 29 EHRR 95.


Again, in a summary – as Mr and Mrs X are the only people the child has ever lived with and they have an article 8 right to family life, their application for adoption is an application they can legitimately make, and a legitimate option before the Court. If they are robbed of the chance to make such an application, how can that argument be properly made before the Court?  And if they don’t get the chance to make their application, their family life is being disrupted without them having a chance to contribute to the arguments.   [Also that as Re B-S requires the Court to consider all of the realistic options, how can the Court fairly proceed without one of them being presented]


Boiling it all down, it seems to be this central dilemma


“Do foster to adopters have a stake within care proceedings and can make their arguments just as any other interested party, or ought they stay out of it and just wait for the Court to decide whether this is an adoption case at all?”



The historical approach of the Court to joining foster carers to the proceedings:-


  1. From the very earliest days of the 1989 Act (which, it will be remembered, came into force in October 1991), the court has set its face against the joinder in care proceedings of foster-parents or prospective adopters. Two decisions of this court explain why.
  2. In Re G (Minors) (Interim Care Order) [1993] 2 FLR 839, the judge had made an order joining foster-parents as parties to care proceedings. This court declined to interfere with his order, describing the case as being “exceptional … with many unusual features.” However, Waite LJ added this (page 846):

    “In ordinary circumstances I would not expect the court to regard it as appropriate to join foster-parents as parties to proceedings of this kind. To do so would in most cases run counter to the clear policy of the Act reflected in ss 9(3) and 10(3). The assistance afforded by foster-parents to the effective functioning of any system of child care is invaluable and should never be discouraged. Theirs is not a role, nevertheless, which would normally make it necessary for them to be joined formally as parties to proceedings in which the future upbringing of the children in their temporary care is in issue. There will generally be ample means for making their views known to the court, either directly as witnesses or indirectly through the inquiries of the guardian ad litem, without the necessity of adding them formally as parties.”

  3. Some fifteen years later, this court said much the same thing again. In Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FLR 959, a foster mother sought leave to apply for an adoption order in accordance with section 42(6) of the 2002 Act after the court, in that case the family proceedings court, had made a placement order. So the forensic context was very different from the one with which we are concerned. However, the judgment of Wilson LJ, as he then was, is of illuminating importance because he had to confront the argument of Mr Stephen Cobb QC, as he then was, appearing on behalf of the local authority. Wilson LJ summarised Mr Cobb’s argument as follows (para 35):

    “In the end Mr Cobb has been constrained somewhat to retreat from the proposition that the court which hears care and placement applications is the appropriate forum for resolution of any issue about the candidacy for adoption of, for example, a foster mother. He still maintains, however, that it is an appropriate forum. Challenged to furnish a reported example of resolution of such an issue in such proceedings, he cites the decision of Hedley J in Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483.”

  4. Wilson LJ, with whom both Ward LJ and Moore-Bick LJ agreed, was having none of this. He said (para 24):

    “The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her.”

  5. He elaborated this (para 34):

    “I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child’s committal into care, the placement order is not the court’s last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order, which is precisely what this foster mother aspires to make. In my view the magistrates were rightly unattracted to the suggestion, albeit that it was later endorsed by His Honour Judge Bellamy, that the foster mother might in some way join in the proceedings before them. As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s 18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child.”

    My own experience mirrors that of Wilson LJ.

  6. Referring to Re R (Care: Plan for Adoption: Best Interests) [2006] 1 FLR 483, Wilson LJ said (para 35):

    “I respectfully agree with Hedley J’s observations. But they are of no assistance to Mr Cobb. To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.”





In short, foster carers or prospective adopters should not be involved in care proceedings as parties unless there are some exceptional circumstances.

So, in this case, were there any?


  1. In my judgment, there is no reason to depart from this long-established approach and, indeed, every reason to follow it. There is nothing in Article 8 or in the Strasbourg jurisprudence which calls for any different approach. There is nothing in the recent case-law on adoption (In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, M v Blackburn with Darwen Borough Council and others [2014] EWCA Civ 1479, [2015] 1 WLR 2441 and In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273) which justifies, let alone requires, any change in approach. Nor, in particular, is there anything in the status or function of an early permanence placement foster carer which either justifies or requires any change in approach.
  2. I agree, therefore, with the essential thrust of the submissions by Mr Donnelly, Mr Tyler and Miss Anning as I have summarised them in paragraphs 28-29 above. The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian (who will be aware of Mr and Mrs X’s stance and can, if necessary, address their suitability) who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where, appropriate, criticism. So, I agree, Mr and Mrs X’s joinder to the care proceedings is inappropriate. Moreover, as was pointed out, and I agree, there is no need for Mr and Mrs X to be parties to the care proceedings to demonstrate that they are suitable prospective adopters for T, for they have already been positively assessed.
  3. The truth is, as Mr Tyler submitted, that, putting on one side Mr and Mrs X’s role as early permanence placement foster carers, and, I emphasise, without in any way wishing to belittle or diminish all that they have done for T, this is a case where there has been an unexceptional period of time caring for an unexceptional child in an unexceptional case. This, in my judgment, is not an exceptional case justifying any departure from the general approach. For the reality is, as Mr Tyler correctly put it, that the ‘status quo’ and attachment on which Miss Scriven and Miss Fottrell placed such emphasis do not differ significantly from what is found in the many similar care cases where a child has been successfully fostered for a short period. Moreover, and to repeat, there is, in my judgment, nothing in the status or function of an early permanence placement foster carer which either justifies or requires any change in the hitherto conventional and long-established approach.
  4. To the extent I have indicated, I therefore agree with the thrust of Mr Tyler’s submissions.
  5. Moreover, there is, as Miss Anning pointed out, a very real risk that if, in a case such as this, the forensic process is allowed to become in effect a dispute between the prospective adopters and the birth family, the court will be diverted into an illegitimate inquiry as to which placement will be better for the child. That, it cannot be emphasised too much, is not the question before the court. I repeat, because the point is so important, what the Strasbourg court said in Y v United Kingdom:

    “family ties may only be severed in very exceptional circumstances … It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

    Indeed, there are passages in Judge Troy’s judgment – for example, where she refers to a “comparative analysis of these two options”, without at the same time spelling out that adoption is appropriate only as ‘a last resort’ and if ‘nothing else will do’ – which do make me wonder whether she may not in fact have fallen into precisely that error here.

  6. There is another significant matter which, in my judgment, points in the same direction. The effect of sections 44(2) and (3) of the 2002 Act is to impose a period of three months’ delay in a case such as this. This is an appropriate aspect of the statutory scheme in relation to private law adoptions. But it would sit most uncomfortably if, as suggested in the present case, the statutory scheme under the 2002 Act is to be run in tandem with the quite separate statutory scheme in relation to care proceedings under the 1999 Act, required, by the recently amended section 32(1)(a)(ii) of the 1989 Act, to be concluded within a total period of only 26 weeks.
  7. Before us, Miss Scriven and Miss Fottrell relied, as had Judge Troy, on the recent case-law emphasising that the court must address and analyse all the realistic options. We were taken through the cases (In re B, In re B-S, M v Blackburn and In re R), but with all respect to Judge Troy they are not in point and do not justify the course she took.
  8. What those cases are authority for is the proper approach in cases where (see In re B-S, para 33) the court is being asked by a local authority to approve a care plan for adoption or being asked to make a non-consensual placement order or adoption order. It was in this context that, as we made clear in In re B-S, para 34, “The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.” M v Blackburn was a challenge to the making of a non-consensual placement order, and it was to that forensic contest that Ryder LJ was directing his observations (see, for example, para 32, where he said “A court making a placement order decision must conduct a five part exercise.”). The same observation applies to In re R. But the case before us is not such a case. The local authority is not seeking either an adoption order or a placement order, nor is it seeking approval of a care plan for adoption.
  9. It would turn the In re B-S learning on its head to assert that, in a case where the local authority is not seeking any order which brings In re B-S into play, the requirement to consider every realistic option justifies, let alone requires, the joinder of a party to argue for the adoption for which the local authority itself is not applying. In my judgment, the In re B-S learning applies where the local authority is inviting the court either to approve a care plan for adoption or to make a non-consensual placement order or adoption order. It does not apply where, as here, the local authority is seeking none of these things.
  10. Accordingly, in my judgment, Mr and Mrs X ought not to have been joined as parties to the care proceedings, and the father’s appeal must be allowed.
  11. I turn to the local authority’s challenge to the order giving Mr and Mrs X leave to apply for an adoption order.
  12. In my judgment, the application was premature, as was Judge Troy’s decision. There are two reasons for this. First, this was an application which properly fell to be considered after the conclusion of the care proceedings and once the court had concluded, if it did, that T’s welfare required his adoption. This is the approach which, in my judgment, is generally applicable, and nothing in the statutory early permanence placement scheme justifies any different approach.
  13. The other reason is graphically illustrated by the forensic difficulty in which Judge Troy found herself, as she described in three passages in her judgment which I have already quoted in context but which bear repetition:

    “Mr and Mrs X have only very limited information about the care proceedings in respect of T in general or about the paternal grandparents in particular.”

    “The local authority has not sought to place before me any information about the paternal grandparents. I have no information about what they may be able to offer to T, about the benefits or any detriments for T in placing him in the care of his paternal grandparents.”

    “The position taken by local authority … means … that I must determine this application without being in a position to consider the relative merits of the two proposed placements for T.”

  14. None of this, in my judgment, is any matter for criticism of the local authority, let alone of Mr and Mrs X. It simply reflects the forensic reality given the stage the care proceedings had reached – as Judge Troy noted, the children’s guardian had not yet filed a report or even reached a concluded view –, a forensic reality which simply goes to demonstrate that the task which Judge Troy attempted to embark upon was premature. Moreover, her lack of knowledge, shared it may be noted by Mr and Mrs X, meant that, try as she might, Judge Troy did not have the materials which she needed to have if she was properly to determine their application in accordance with sections 42(4) and 44(4) of the 2002 Act.
  15. Accordingly, in my judgment, Mr and Mrs X ought not to have been given leave to apply for an adoption order, and the local authority’s appeal must be allowed.


There might come a case where the circumstances are sufficiently exceptional to allow a foster carer to make these applications, but it is rather hard to think of one.  I don’t think, tracking it through, that the Court of Appeal actually determined whether the foster carers had acquired any article 8 rights or whether as a result they had article 6 rights to a fair hearing, but the thrust of the case is that there were not the sort of exceptional circumstances that would have warranted granting their applications for leave to be joined as a party and to make their application for a private adoption.


As the Court of Appeal say at the end of the case :-


  1. Before parting from this case there is one final matter I need to refer to. These proceedings have inevitably imposed an enormous strain on Mr and Mrs X. Anxiety and anguish was etched on their faces as they sat before us. The outcome will come as a terrible blow. They have suggested that the local authority was unduly dismissive in November 2014 of the risk that they would not be able to adopt T and, after the paternal grandparents had emerged as contenders for T’s care, unduly dismissive of the possibility that the paternal grandparents would receive the positive assessment which, in the event, they did.
  2. We are in no position to evaluate those concerns which do not, in any event, ultimately bear upon the issues which we have to decide. Without, I emphasise, expressing any view as to what was actually going on, I merely note what I would hope is obvious: that in every case of an early permanence placement there must, from the outset and at every stage thereafter, be complete frankness coupled with a robust appraisal of the realities.

Foster to adopt

Another bite-sized nibble at the Children and Families Act 2014.  [Warning, post contains both Minnie and Moaning]


The more I dig into this Act, the more troubled I become. It may be that an Act that tries to resolve family justice, educational special needs, granting licences for performing children, allowing the Chief Inspector to enter a home and seize documents and take photographs if he believes a person is unlawfully pretending to be a childminding agency, repeals the no-fault divorce provisions of the Family Justice Act that never got commenced,  employment rights for parents, whether you can smoke in your car if children are present, legislates on the shape size and texture of cigarette packets (and how you might open them), and whether it should be unlawful to sell nicotine gum or e-cigarettes to children MIGHT, I only say MIGHT, have spread itself a little too thin.

 [I’m not exaggerating, this stuff is genuinely in the Act. It’s a Children Act, an Education Act, an Employment Act, a Tax Act and a Health Act all squidged into one place]

 Today I’m looking at section 2, which is a new provision in the Children and Families Act relating to the duty on Local Authorities to consider and prioritise “foster to adopt” placements for children.


A “foster to adopt” placement is a foster carer who takes on the care of a child as a foster carer, but who is approved as an adopter, and who thus could move on to adopt the child if the Court’s final decision is that adoption is the right solution for the child. 


With anything, there are pros and cons. Here are some (list exhausting, but not exhaustive) :-



Pros  – it means that if the child does need to be adopted, the child moves once and only once (from the parent into a permanent placement). It means that the child is not waiting and forming an attachment with the foster carer only to lose that relationship.


It avoids delay in a permanent placement being found. It gives the Court when making final decisions a degree of confidence that a placement has been found and tested and that it works for the child. It gets approved adopters practical experience with caring for the child before making that huge commitment. It might help parents to know that the child is with someone that the child knows rather than there being a big mystery about where the child will be placed and when.


Cons – It can produce a feeling of fait accompli, that before the Court makes any decisions about the case that the child is already in an ‘adoptive’ placement just waiting for the rubber stamp. It can lead to adopters (already a scarce resource) bonding and connecting to a child only for the child to be rehabilitated – which is after all, the starting point in all care proceedings – how big an emotional turmoil would that be? In turn, does this lead to the carer keeping the child at ‘arms-length’ until the Court’s decision is made?


Is this a proper “matching process” or do you end up with a very superficial matching process? Does that lead to increased risk of breakdowns later on? It could lead to a placement for foster-to-adopt being made before a viable family member comes forward and then the child not being placed with that family member. Is there a conflict of interest in evidential terms – i.e if the foster carer hopes to adopt the child, how confident can the Court be when the foster carer reports that the child has nightmares after contact or never talks about missing mummy?  The risk of the address coming out is greatly increased, as during the care proceedings documents are produced and circulated and it only takes one slip for an address that should be redacted not to be.


Most importantly, does having a ready made adoptive placement for the child end up tempting the Court into making the wrong comparisons when making their final decision – rather than looking at whether the parent is good enough do professionals and the Court get seduced into comparing what the child’s life would be like with these adopters versus going home?   


And  of course in light of Re B-S, how confident can one be that the Court, even if approving that the child should live with these carers would want to do it under adoption rather than fostering or SGO  – doesn’t that raise the spectre of the foster-to-adopt carer being asked that specific question in evidence?  

[I think you would need to be very transparent in recruiting foster-to-adopt carers that there is a very real possibility that the Court, even if the placement with them is sanctioned, might want to do this under SGO or Care Order rather than adoption, and that they might find themselves drawn into care proceedings]


Another difficult issue is what this means for sibling groups – if you have a group of children and one is aged 8 and one is aged 2, should the two year old be put in a foster-to-adopt placement and separated from the other, or is it more important for them to be together?   [As we will see later on in this piece, if the s22 (9A) duty is triggered, that removes entirely the provisions in the Act that say that it is better for siblings to be together. That doesn’t feel right to me – if there’s a presumption about which is best “being in a placement where you might get adopted” or “being with your brother”  I have a different view to the Act about which way the presumption should go]


It is hard to try to balance the pros and cons as an overall philosophy – it depends on your perspective and stance, and whether what is more important is justice and justice being seen to be done or minimising disruption and delay for a child.  Perhaps it is the right solution for some cases, some children.


[I am not actually averse to concurrency placements and think that they represent a good option to have available for some cases, I am troubled by the clunkiness of how this has been rolled-out though]


I know that the Family Rights Group have been very concerned about the provisions, and I share some of their concerns  – they did a great job in highlighting them, sadly they weren’t listened to- I’m not convinced that the ramifications of this legislation has been thought through 


You can read Cathy Ashley’s piece in Community Care here. 


All of the complaints that Cathy makes in that piece are legitimate and she is right that interested groups were making these points when the draft legislation was published. The ills they identified have not been remedied.


But what I want to do in this piece is to consider WHEN the actual duty arises   (and in turn, what happens when it does)


Children and Families Act 2014


2 Placement of looked after children with prospective adopters

(1) Section 22C of the Children Act 1989 is amended as follows.


 (2) In subsection (7), after “subject to” insert “subsection (9B) and”.


(3) After subsection (9) insert—


“(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and—

(a) are considering adoption for C, or

(b) are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.


(9B) Where this subsection applies—

(a) subsections (7) to (9) do not apply to the local authority,

(b) the local authority must consider placing C with an individual within subsection (6)(a), and

(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.


(9C) Subsection (9B) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.”



That’s rather a mouthful, but in essence


Where the Local Authority are considering adoption for the child OR are satisfied that the child ought to be placed for adoption   AND if they are not satisfied that a placement with a relative is the most appropriate placement for the child, they must consider a placement with a foster carer who has been approved as an adopter


That seems to me to be two separate circumstances


S22 (9A) (a) The Local Authority are considering adoption for the child




22 (9A) (b) The Local Authority are satisfied that the child ought to be placed for adoption



I’ll deal with  22 (9A) (b) first, because although it is more complicated it is also easier (if that makes sense) because there’s an answer to WHEN a Local Authority are satisfied that the child ought to be placed for adoption.


That comes from s22 of the Adoption and Children Act 2002, which says that when a Local Authority is satisfied that a child OUGHT to be placed for adoption they MUST make a Placement Order application.


We know that a Local Authority cannot make a Placement Order application until they have a decision from their Agency Decision Maker that adoption is the plan for the child AND that they are authorised to make an application for a Placement Order.


Deep breath – therefore 22 (9A)(b) Children Act 1989 can be a duty that is ONLY triggered once the Local Authority have permission from the Agency Decision Maker to apply for a Placement Order. 


That would normally be at around the time that the Local Authority file their final evidence, and thus about 8 weeks away from a final hearing.  I think it is extremely unlikely that a Court would endorse moving a child from an existing foster placement into a Foster to Adopt placement 8 weeks before a final hearing, unless the parents are in full agreement.  So, I just don’t think that this will actually happen in practice.





S22 (9A) (a) is a different matter. In effect, this means that if a Local Authority is considering adoption for the child and do not consider that placing with a relative is the most appropriate placement for the child, they must consider placing with a foster parent who is an approved adopter


Two distinct limbs of the test there


(1)   Are the Local Authority considering adoption for the child


How do you decide whether the Local Authority is considering adoption for the child? Are they considering this once all of the evidence is in, or is the fact that they are considering it as a possibility mean that the first limb of the test is met?   Are we getting into territory of whether they are REASONABLE in considering adoption for the child?


As the Family Rights Group have raised, this does create the spectre that a Local Authority who are fostering the child under a voluntary (s20) arrangement, long before the case goes to Court or the parents have legal advice, can say that they are “considering” adoption and thus have a duty to place in a foster to adopt placement.


(2)   The LA do not consider that placing with a relative is the most appropriate placement for the child . 



Okay, this is really important, because what this is a DIFFERENT test about placing a child with a relative.


The usual test


S22 C (7) Children Act 1989  means that a placement with a relative, friend or other person connected to the child MUST be given priority     (and thus a child will only not get placed in a family placement if the circumstances in s22C (4) are made out – that the placement is not reasonably practicable or would not be consistent with the child’s welfare)


Won’t apply if the LA are ‘considering’ adoption under s22 (9A)  In those circumstances, it seems that the LA can discount the placement with the relative if they think that it is “not the most appropriate placement for the child”  


A different quality of test.  S22C means that unless there are compelling reasons, the placement with the family member is better than foster care, and s22 9B (c) means that the LA don’t have to place with a relative unless they consider that this is the ‘most appropriate placement’   – that’s an entirely different character of test, and it is unlocked by the Jedi-hand-wave of “we’re considering adoption”



Also, WHEN is it that the LA “do not consider that placing with a relative is the most appropriate placement”?   Is it at the outset of the case, when it might be that they want to conduct an assessment first and say they can’t place until that assessment is done?  (Does THAT trigger the duty to place in a foster to adopt placement?)   OR is it after that assessment is done?


At the moment, the wording is so loose that it appears that if the child is being placed away from the parent under voluntary accommodation, and the child is under six, the LA would be ‘considering adoption’  and can thus decide that a foster-to-adopt placement is more appropriate than placement with a relative, and also separate the child from a sibling.  And not only CAN do it, but it appears that they have a duty to consider it.


I’m not suggesting that Local Authorities would do this willy-nilly or capriciously, but the point of legislation is to provide safeguards as well as powers, and this doesn’t have much. (It only takes one bad LA or one bad social worker)



IF a Local Authority were to do that, it can be argued that they are just following the duties pushed onto them by the Act.


[A simple solution to this would be for the LA to say that they have a duty to CONSIDER it, they have CONSIDERED it and are not going to do it as a result of the wider context of the case. That might be the angle that is taken in most cases, but it depends to an extent on whether the particular Local Authority is keen to push foster-to-adopt and has such carers available]








The other worrying thing is that if s229A (a) is met, s22C (7) –(9) do not apply.



(9B) Where this subsection applies—

(a) subsections (7) to (9) do not apply to the local authority,


What those cover are :-


That the placement should be within the Local Authority’s area 

That the placement allows the child to live near their original home

That if the child is disabled the accommodation provided is suitable for the child’s needs

That the placement doesn’t disrupt the child’s education or training

That if the child has a sibling, it enables the child and the sibling to live together



The implication of this is, that if the LA are considering adoption and aren’t placing with a relative, their DUTY is to consider a foster to adopt placement EVEN though this would mean separating the siblings – the foster to adopt takes priority over siblings.



Given that ‘considering adoption’ triggers these duties (which can involve not placing with a relative because it is not the ‘most appropriate’ placement, and separating siblings) it seems a glaring omission that such a powerful test is not defined properly.


I also think that placing in foster to adopt is such an important issue that the Act ought to have said that this can be done only with either  the permission of the existing holders of parental responsibility or the permission of the Court.  That would have cut through most of the worries.



Without this provision, one is looking to the Court to be the safeguard check and balance. It will be the Court who would be endorsing the care plan put before them. The Court would be taking account of the fact that the Local Authority’s duty is to seek a foster to adopt placement even though that means separating brothers or sisters, but the Court is not bound to prioritise foster to adopt above siblings being together.  (that priority setting bites on the Local Authority, not the Court)


I suspect that the Court would want to tell the Local Authority that their plan to place one child in a foster to adopt placement and another child in a separate foster placement (because one is young enough for them to be ‘considering’ adoption, and the other is not) is not approved and to change it if they want their Interim Care Order.



However, that then gets into territory of a wholly different kind, because the Children and Families Act 2014 also changes the role of the Court in scrutinising care plans


S15 Children and Families Act 2014


(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

“(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A

plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).


The argument here, I think, would be that whilst the Court is not REQUIRED to consider in the care plan whether the siblings are together, they are not PROHIBITED from doing so. 

[Or being very creative, saying that siblings are including within section 31 (3B) (a)  since you are deciding whether the child can live with  any member of the child’s family – it says ‘live with’ not  ‘be cared for by’]


Finally, if you are interested, having a child placed with you in a foster-to-adopt placement doesn’t trigger any adoption leave entitlement that exists in other legislation, until the child is actually formally placed for adoption (that’s tucked away in s121 of the Children and Families Act 2014)

Con-current bun-fight?

Apologies for dreadful punning title, bad even by the low standards I set myself.

A quick summary of the new Fostering for Adoption proposals.


As usual, with any government initiative, you can find dozens of links to the Minister announcing these brave new measures, and people commenting on whether they are any cop or not, but actually finding the damn thing takes an age.


So, here they are : – 


I must say, the first thing that struck me was that 50% of the babies taken into care ended up being adopted.  (I thought that figure was rather low, given the very very high test for removal of children, particularly babies, is these days; and I’d be interested to know whether of the remaining 50% how many went home to mum or dad and how many were placed with relatives) . I think the thing I was supposed to gasp at with this headline stat was that it took those who went on to be adopted 15 months to find a placement, but that wasn’t shocking at all.  If the average care case is taking 12-13 months to conclude at present, then it makes a degree of sense to me that those involving first time parents (where the information needs to be covered thoroughly, rather than just revisited) are almost certainly going to take longer.


So, concurrent planning – I couldn’t disagree with the principle that it is a good idea. The carer who takes on a baby in care proceedings does so with an open mind as to adopting the child if that ends up being the care plan for the child. It lets the bond develop, cuts down the drift, reduces the harm of moving placements. All jolly marvellous.

(Provided that the people putting themselves forward have no emotional feelings whatsoever and can release a child that they were hoping to adopt for over a year back to birth parents, and then move on to try to adopt the next one, oh and that they don’t work, so it is not a problem getting adoption leave to spend time with said baby, only to need to do it again with another one in a year. And who can cope with that first, second, or third attempt to adopt a child that doesn’t work out and keep coming back for another)

I think concurrent planning can certainly work, but if it is to work on a meaningful scale, then the barriers between fostering and adopting need to be broken down and I think that takes a lot of time.  There are undoubtedly some foster carers who are willing to adopt the right child (though that leaves you with the problem of bleeding out foster carers numbers) but I think there are very, very few adopters who are interested in fostering. The two things at present, tick very different boxes for people. One group are looking to help children for reasonably short periods of time and are emotionally and mentally prepared to let them go and take on another, and one are looking for someone to complete their family and to care for as a parent.

I don’t think concurrency doesn’t happen much at present because social workers are against it, or because parents feel it prejudges the outcome, but because there aren’t carers queuing up to do it. Maybe there will be in the future, as it becomes a genuine third option, rather than a genuine stark divide between those who foster and those who adopt.


Anyway, enough of my opinions, what are the conclusions of the report as to HOW we make concurrency work (taking it as read that because they are doing it, the thrust of the report is that more concurrency is a good thing)

We announced that we will change legislation to make it easier for prospective adopters to be approved as foster carers in appropriate cases, and these new draft regulations will be published for consultation in September. 

We therefore propose to introduce a new legal duty on local authorities to consider placing a child with carers who are likely to become their permanent carers, where the evidence available to the local authority clearly indicates that it is unlikely that he or she will be returning home

[I don’t want to ‘prejudge the outcome’ here, but that is EXACTLY the sort of criteria for going down the concurrency route that would ensure that parents solicitors fight against a concurrency placement in any case, because it involves a prejudgment that the case is likely to end in adoption. When are the LA supposed to make that decision? At the end of proceedings when the Court has determined it? Clearly not, as that’s what they try to do now. After the expert reports, but before the Court has heard the evidence? Or when the first ICO is made? I suspect the idea is the latter, but I can already hear the howls of outrage – how can you place this child in a concurrency placement, when the law states that you should do this when the LA have decided the child is unlikely to go home.  How can the social worker keep an open mind, when they’ve already decided the child is unlikely to go home?  This is exactly the sort of test  (poor prognosis) that destroyed concurrency in one Local Authority area that I know moderately well. Once you decide concurrency is for ‘hopeless cases’ no proper advocate for a parent can ever do anything but fight against their client being labelled as a hopeless case.  [So, far from encouraging and promoting concurrency, my initial view is that this strangles it at birth]

We will also fund Coram – the leading centre of practice in concurrent planning – to broaden their reach as a National Centre of Excellence in Adoption and Early Permanence. This will allow all local authorities and voluntary adoption agencies in England to access expertise in concurrent planning, and in the sorts of management practice that make for effective early permanence practice, including fostering by potential adopters.

Just so I’m not being purely curmudgeonly, I think that’s a good idea. Coram do bloody good work and are very experienced about this, and if anyone has valuable ideas and guidance to give, it will be them. (I note that there isn’t any figure on the funding)

The National Centre will give social workers and managers access to training and a set of tools to help them introduce concurrent planning and other early placement practice, working with the judiciary in their area. It will draw on the elements of effective practice already developed in a number of different local authorities and will give access to learning sets and collaboration to improve understanding of good practice. Working with local authorities and a range of national experts, the Centre will define and promote national standards approved by experts and will offer accreditation to local authorities and voluntary adoption agencies who sign up to its programme.

(A bit waffly, but still probably a good idea)

But wait, where is the stick? You can’t have a policy launch without a stick

Finally, we are proposing a small adjustment to the adoption scorecard to ensure it gives due credit to effective practice in early permanence by local authorities. Specifically, we will change the first scorecard indicator so that it measures the average time between a child becoming looked after and moving in with his or her eventual adopter, including in cases where he or she initially moves in on a foster care basis. This change will serve the additional purpose of removing some anomalies in the scorecard data that local authorities have raised with us.


Yes, we will achieve this through Adoption Scorecards. Because after all, scorecards and performance indicators have always solved every problem they’ve ever come into contact with. They’ve worked so well in education, and the NHS.  Cynicism aside, I think it is sensible to have the scorecards measure when the child WAS PLACED with prospective adopters, rather than when the adoption order was made, because that’s really what’s important for children who the Court have determined should be adopted, that they be placed.


I didn’t see much in this by way of encouraging and incentivising concurrency carers. It makes it easier for adopters to become foster carers, rather than the other way around. There isn’t anything that deals with the crippling financial gulf between being a foster carer (possibly even an agency one) on good, non-taxable reumneration, and moving to adoption where you’re broadly on your own in terms of financially supporting the child. Nor is there any suggestion of ‘concurrency leave’ to allow concurrent parents to get the masses of additional time off they would need.


As a concept, I like concurrency a great deal, but I think it would take a concerted four or five years to move to an entirely fresh and well resourced third strand of ‘non-family’ carers for children, to sit as a genuine option beside fostering and adoption.  But in the real world, I don’t know how this model encourages foster carers to give up their standard of living to adopt, or encourages adopters to put themselves through the emotional wringer / financial hardship of caring for a child that they have to hand back at the end of proceedings.

Having represented a lot of prospective adopters, the insecurity and fear of adoption proceedings that the child will be taken away from them and sent home is already overwhelming and massively stressful; and those are in cases where the Court has already ruled that adoption is the plan – that must multiply exponentially where the case is still all in the balance. 


I suspect in most cases where concurrency has worked, it has done so on the tacit assumption that ‘if you want to adopt a baby in our area, you’ll have to be a concurrency adopter’  and that people have played ball because they want a baby.

Three, is not the magic number

I’ve been pondering this week about an issue that seems to come up more and more. Obviously, this whole article is prefaced by the caveat that children are better off with their birth family or family members if at all possible, even if that means a lot of support going in, so the issue arises in cases where the Court is being presented with a plan by the Local Authority that a sibling group can’t go home to the birth family or extended family.

It is the vexed question of separation of siblings – how far can anyone predict whether the future desired placements will materialise, does there ever come a point at which the desired outcome of keeping a sibling group together actually becomes harmful (i.e the trade-off between them being together versus them not having stable, lasting placements but running the risk of placement breakdowns), and to what extent is the detail of the care planning for a sibling group within the control of the Court, and what happens if the Court don’t want to let go of the reins because they doubt that what has been promised will be delivered?.  I’m probably going to do a post about the official solution to the “starred care plans” issue, and whether that official solution actually works in practice  (hint, since the introduction of the IRO referring to CAFCASS, CAFCASS making an application system has been in place, CAFCASS have had 8 such requests, and issued on none of them)

But one thing kept coming to my mind, and it is that children in a sibling group of three are the most difficult in this argument. A single child, siblings don’t arise. Two children – you generally want to keep them together (although if there’s a big age difference, that can be tricky) and you stand a good chance of doing so. Four children, it is generally accepted that you’re unlikely to be able to keep them together and although you may try to find such a placement, the consensus is that it would be a beautiful and pleasant surprise if you managed it, but not something you’d be condemned for if you couldn’t. Five and over, and it is accepted that the siblings would have to be split and the debate is about how to do this.

When you have a group of three, however, there remains a disconnect between what people hope and expect  (you should be able to keep these siblings together, and you must find them a placement together, because splitting them would be terrible) and what the reality of carers searching for sibling groups of three actually are.  Even assuming your sibling group of three has no particular quirky features, no unusual cultural issues, not a high level of post placement contact being planned, they have no significant behavioural problems  (all of which assumptions are not necessarily the reality), the carers in the available pool who are looking for sibling groups of three are very limited.

A figure I saw this week suggested that currently for sibling groups of three or more, there are far, far, far more sibling groups looking for carers than there are carers looking for sibling groups.  [I was going to give the figures, but had an attack of unease about doing so – but if you’re imagining that there are five sibling groups for every one carer looking for a sibling group, you’re way, way overestimating the number of carers]  

That doesn’t mean that one shouldn’t try, or shouldn’t try really really hard, or that for any one of those individual sibling groups that not being placed together is anything other than a  tragedy  (having already given my caveat that this arises only if they CAN’T go home or to extended family), but it strikes me that no matter how hard one tries, no matter how fervently every professional involved scours the potential placements, not all of the sibling groups who are competing for a much, much smaller pool of carers are going to find placements together.

Even if we tripled the number of carers who want sibling groups; by some magical recruitment process, or as Gove is suggesting by dramatically reducing standards/the exhaustive bureacratic and draining process (depending on where you stand), still the vast majority of those sibling groups of three waiting to be placed together (who all professionals have determined, really really need to be together if at all possible) are going to be let down. And are we letting them down further by spending months of such a critical period in the children’s lives searching for something that has a high probability can’t be delivered?

I don’t know what the solution is. Long-term, taking action to either support families, to prop up and improve placements within the family, to get the treatment that parents who have been through the care system process badly need, or earlier intervention on the first child, so that we don’t get three children needing to be removed, with a view to massively reducing the need for large sibling groups to come before the Court. A whole different approach with foster carers – the concurrency model rolled out across the board, so that more often than not, the people fostering the children during the proceedings do so with an open mind that they would offer them a home for life, if needed? I don’t know what you would need to offer, or seek in recruitment to make concurrency foster placements the norm rather than an exception.

But we are working in a reactive system. What Government is ever going to throw millions of pounds of public money in helping parents who have heroin addictions or alcohol problems, and stand firm in front of the criticism that would come from the Daily Mail about that policy? Even if those millions would save that tenfold over time, and greatly reduce the human tragedy that ever single set of care proceedings inevitably is, no matter how well handled they are?


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