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“Dual-planning in final care plans– does it exist post Re B-S?”

Cases in the County Court don’t often make it onto Baiili law reports (though at some impending future time they all will), but this one is interesting and potentially important, not least because it identifies a conflict between two existing Court of Appeal authorities.

 Re D-R (Children) 2013

 http://www.bailii.org/ew/cases/EWCC/Fam/2013/5.html

 His Honour Judge Bellamy dealt with the case (he being a Judge who occasionally sits in the High Court, and a very competent crafter of an analytical judgment)

 The case involved six children, Ian aged almost 8, David aged 5½, James aged 4, Sarah aged 3, Rachel aged 22 months and Peter aged 6 months (not the children’s real names). The local authority also applied for placement orders in respect of each of the five younger children.

 The parents accepted that they were not able to care for the children and that the threshold was crossed. No other family members were being put forward. The case, two months ago, would have been pretty simple. Placement Orders for the younger five children, Care Order and long-term fostering for Ian.  Most of the debate would have related to contact, and particularly sibling contact between Ian and his younger siblings.

 However, in our new landscape, two interesting questions emerged.

 

  1. As, in order to make a Placement Order, the Court must be satisfied that “nothing else will do”, what happens if the judicial analysis of the advantages and disadvantages of adoption v long-term fostering come down on the side of adoption being a better placement outcome for the child, but NOT to the point where long-term fostering could be dismissed as a potential option that on analysis “will not do” ?

 

  1. Does the fairly common care plan of “search for adoption placement for six months under a Placement Order, and if not successful search for long-term fostering”    (dual-planning, as endorsed by Wall LJ in Re P) stand up to Re B-S ?   If one is saying that ‘long-term fostering’ would do in six months, then how can at the same time one say that it is an option that will not do?

 

And tied into all that is what the hell “nothing else will do” means when the Court is considering all of the other options.  In order to say that “nothing else than adoption will do”  isn’t the Court in effect saying in relation to each of the other options that they “won’t do”   ? (rather than that adoption, taken in the round,  has advantages that outweigh the advantages of the other options for the permanent care of this child?)

 

If that is right, and it is certainly one reading of Re B-S, that in effect the Court of Appeal have determined that adoption is not an option available to the Court unless all of the other options are excluded on a careful comparison – adoption is off the table unless all other options are discounted

 

 then the fact that a Court might decide that it is by far and away the BEST option of the range available for this particular child counts for little or nothing. And where does that leave s1 of the Children Act 1989?  It seems as though a Judge might have to make an order that doesn’t feel like the one which is in accordance with the child’s best interests.

 

[My own take on that would be that it feels deeply uncomfortable for a Judge to decide that adoption is better for the child than long-term fostering and then have to go for long-term fostering IF you are looking at it in terms of the Judge choosing the ‘best option’,  but IF you flip that around and look at it in terms of the Judge choosing the ‘least worst’ option, it probably works  – perhaps I’ve just been re-reading too much Daniel Kahnemann this week]

 

Whilst it was easy to frame Re B-S as being a conflict between adoption and parents as the options, it may be that the harder tussles are between adoption and long-term fostering.  There are many arguments that can be deployed about why adoption for a particular child is better for that child than long-term fostering (and vice versa) but limited arguments that would allow long-term fostering to be discounted as an option that “will not do”

 

In this case, Re B-S had arrived in fairly close proximity to the hearing, and the Local Authority final evidence had not as a result contained the analysis of the options now required. The Judge considered an adjournment but instead decided that the analysis could be drawn out of oral evidence, cross-examination and submissions.

 On the first issue, of what happens where adoption looks preferable to long-term fostering, but it cannot be said that long-term fostering “will not do”

 I have underlined the critical passages

 99.      Before approving the local authority’s plan the court must consider the arguments for and against each option. I am indebted to Mr Tyler for his very thorough written submissions and not least for his attempt to evaluate the arguments for and against adoption by means of a balance-sheet approach.
{I have snipped the balance sheet exercise for pacing, but it is worth a look}

 
104. Mr Tyler submits that the balance ‘comes down clearly and by a wide margin in favour of seeking to attain for David the “gold standard” of a secure, adoptive placement’. I don’t accept that to be the case. Whilst I do not disagree with the factors Mr Tyler proposes should be weighed in the adoption balance, in my judgment the balance is at best even. The local authority’s acknowledgement of the importance to David of contact with his siblings (a factor which, in accordance with s.1(4)(f)(i) the court is bound to consider in evaluating David’s welfare interests), its acknowledgement that the need for sibling contact may well impede the search for an adoptive placement and the impact of David’s emotional difficulties all weigh heavily against the plus factors identified in support of adoption.


105.
Although Mr Tyler identifies only two factors in support of fostering compared with six factors against, in my judgment the weight of the competing factors means that the balance is closer than appears. I am nonetheless prepared to accept that the weight of the factors which point against long-term foster care marginally outweigh the factors which point in favour.


106.
In the light of that balancing exercise it is difficult to see how it could properly be said that nothing else but adoption will do, that no other course is possible in David’s interests, that there are overriding requirements pertaining to David’s welfare which make it clear that nothing but adoption will do. When one adds to that the real and significant doubts about the deliverability of the plan for adoption for David and when one also takes account of the provisions of s.1(6) of the 2002 Act, the outcome in my judgment is clear. The plan to engage in a time-limited search for an adoptive placement is not appropriate.


107.
On the facts of this case I am not persuaded that adoption is the appropriate outcome for David. It is not the least interventionist option consistent with his needs. I shall, therefore, dismiss the application for a placement order and approve the local authority’s alternative care plan of long-term foster care.

 

On the dual-planning issue

 

88.      Given the ‘striking’ language used by the Supreme Court in Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children) what, if any, are the consequences for the type of care plans this local authority advances in respect of David and James which propose a time-limited search for an adoptive placement with long-term foster care the fallback position if an adoptive placement cannot be found? For the local authority, Mr Tyler submits that this issue has already been determined by the decision of the Court of Appeal in Re P (A Child) [2008] EWCA Civ 535 and that that decision is unaffected by Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children).

 

Re P is undoubtedly a very strong authority for sanctioning a dual-planning care plan of the type “Look for adoption placement for six months, and then long-term foster if not successful”  – it is a Court of Appeal authority, the former President gave the judgment – it gives the practice ringing endorsement and deals with the topic in detail, and it absolutely isn’t up to a County Court Judge to decline to follow that precedent when the issue is absolutely on point.

 

The obvious issue, as the Judge went on to raise, is that if in order to make a Placement Order the Judge has to say that long-term fostering won’t do, then approving a plan in which long-term fostering is the back-up seems to conflict with that.

 

I.e there is a tension between Re P and Re B-S. Both Court of Appeal authorities.  Added to the complication is that the Court of Appeal in Re B-S specifically looked at Re P and quoted it approvingly (though not on this particular dimension) so they clearly did not determine that it was no longer good law  (if indeed they could)

 

112. So far as James is concerned, although Mr Tyler’s analysis relies upon similar factors to be weighed on either side of the balance, those factors do not necessarily carry the same weight. The fact that James is 18 months younger than David together with the fact that he does not appear to have suffered the same level of emotional harm persuade me that so far as the adoption balance is concerned it comes down in favour of adoption. As with David, I am satisfied that the foster care balance comes down, narrowly, against foster care. In those circumstances, the evaluation of adoption as against long-term foster care suggests that the balance comes down in favour of adoption.


113.
That, though, is not the end of the matter. There may be a more fundamental reason for rejecting adoption as the long-term outcome for David. As the Court of Appeal acknowledged in Re B-S (Children), the language used by the Supreme Court in In Re B (A Child)(Care Proceedings: Threshold Criteria) is striking. Adoption is ‘a very extreme thing, a last resort’ only to be made where ‘nothing else will do’, where ‘no other course is possible in [the child’s] interests’. Care plans proposing a time-limited search for an adoptive placement for a child with long-term foster care as the alternative are not uncommon. With respect to such a care plan, how can it be said that ‘no other course is possible in the child’s interests’ or that ‘nothing else will do’ in circumstances where the local authority itself proposes long-term foster care if a brief (in this case six months) search for an adoptive placement is unsuccessful?


114.
I referred earlier to the decision of the Court of Appeal in Re P (A Child). Mr Tyler submits that Re P (A Child) emerges from Re B-S (Children)

‘not only unscathed but positively reinforced. The President approvingly refers to the judgment noting that it enshrines “a stringent and demanding test”

 

I don’t wholly accept that point. When one looks at the context in which the President used those words one finds that he was talking about the approach taken in Re P (A Child) to the interpretation of the word ‘requires’ as it appears in s.52(1)(b) and not to the court’s comments on the policy of the local authority/adoption agency to engage in dual planning.


115.
If the consequence of the language used in Re B (A Child)(Care Proceedings: Threshold Criteria) is that dual planning is no longer permissible then the impact on local authority care planning will be profound. In the absence of a clear indication from the appellate courts that on this issue the guidance given in Re P (A Child) is no longer to be followed, I consider myself bound by it. Notwithstanding the unease I have expressed, having conducted the required balancing exercise I am satisfied that the local authority’s final care plan for James is proportionate and (in the context of both s.1(1) Children Act 1989 and s.1(2) Adoption and Children Act 2002) in his best welfare interests.

 

 

 

I have a suspicion here that the higher Courts, maybe even the Supreme Court, are going to have to look at the tension between Re P’s endorsement of dual-planning and the logical consequences of Re B-S that if long-term fostering is a viable option for a child, you can’t make a Placement Order just because adoption is a preferable option.  And that perhaps by publishing this judgment, the Judge had in mind that this issue needed to be brought into the light to be scrutinised.

 

(In the meantime, I don’t think I’m minded to run any dual-planning final care plans)

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

9 responses

  1. Here I go pondering again, l feel, that Re. V [2013] should be added into the equation here, Black LJ made observations on the differences between Long Term and Adoption following an appeal by Local Authority against Long Term fostering was not “the best option”

    Re V (Children) [2013] EWCA Civ 913

    http://www.bailii.org/ew/cases/EWCA/Civ/2013/913.html

    The local authorities Care Plans were for two girls aged 9 and nearly 5 to be placed for adoption. Care and placement orders were sought. At first instance HHJ Baker QC decided it was necessary for the girls to be in the care of the LA but that it was in their best interests to remain in long-term foster care and maintain contact with their parents. He made care orders, required the LA to file revised care plans on the basis of long-term foster care and refused the applications for placement orders. The LA appealed. The LA submitted that the judge’s interference with existing family life was too modest rather than unjustifiably extreme (a sort of mirror image of Re B [2013] UKSC 33).

    Interference with family life would play a key part but how much weight, in Re. V I would have to say that the foundation was the age of the children,

    • Yes, Re V’s quotes are going into most B-S compliant statements, I think. But they are all still reasons why Adoption > long-term fostering for particular children, not why long-term fostering “will not do” – the “nothing else will do” phrase will badly need clarification as to what needs to be demonstrated before an alternative option can be rejected (I just wrote a piece for Jordans and was able to come up with 9 different definitions of “nothing else will do” fairly quickly). If it is the common-sense interpretation – that the other options have to be ruled out as possibilities, then that is quite hard to do for long-term fostering, as you can see in this case. If it is a reset to “The risks or disadvantages in this option outweigh sufficiently the positive advantages to make it an undesirable outcome for the child” (which is more or less what we used to do, without specifying it with that level of precision) then that’s probably the best workable way of making it a rigorous test but without inadvertently abandoning large numbers of children to long-term fostering even when Courts don’t think it is the best option available.

  2. Ashamed to be British

    I really like this piece, food for thought … if you can’t rule it out, rule it in!

  3. Not knowing any history I only comment on what is above.
    I have concerns that the parents agreed with the court that the court was right in deciding the thresholds had been met for a child protection order in the first place and a family court case to decide on fostering or adoption.
    And what, if any support did the family get from social services to keep the family together if the problem was crisis, ill health, housing etc. (taking it there was no proven abuse as such)
    Did the parents agree because they thought the court would help resolve these issues and go with a think family approach i.e. supervision order and support, or did the parents admit that they could not cope at all and just want to keep the children from adoption and therefore work on bettering their circumstances while children were placed in a safe enviroment and kept together or at least lived closer with regular contact for all.
    Either way to work on the best interests of the children, where there are 5 of them, adoption would no doubt cause a permanant displacement for them all, losing contact for all. Most adoptees want to keep everything for themselves and are not interested in keeping ‘old ties’ that dont fit in with their plans. That often also means siblings to the adopted child.

  4. Pingback: “Dual-planning in final care plans–...

  5. So lets get onto the real interests of the children and not everyone elses interests or social services, ‘experts’ or the law for a moment.
    There are five siblings. For whatever reason their future being decided by a court. The court has already decided their fate by putting them in state care.So they have 1 huge loss, their birth parents and all extended family and potentially their identity.
    Next question, are they put up for adoptions. Or in reality, are they going to now lose their siblings and potentially their identity.
    If it was viewed for just financial reasons, adoption could be the answer, If identity, bonds, ties, care, empathy and all that being ‘human’ means only has a cash value.
    In other words if those children grow up to regard financial gain and status as more important than anything they have lost then adoption would be the right choice. So in other words, by the courts decision they have had their lives improved by the above and hopefully loved by their adopting family. The only problem with that is research has proven in most cases to dispute that. Most have had a sense of loss, that has lasted a lifetime. most go searching for their roots and birth families. For some it is too late and they take that pain to the grave.
    For some the adoptions work, those children often become successful, believe everything they have been told and would agree with the courts decision when they were children.

  6. But the first still outweighs the second. So I feel it is more a matter of conscience than law.
    It is more a case of preserving humanity as we know it and building on a world where people can actually receive and give care and treat each other with the respect for our own lives and roots.
    It is ok for successful people to ponder on where they see fit to sever ones roots and destroy entire families but it is not in the childs best interests or the human races to make financial and status more important than basic human needs.
    So in this case I find the whole case appalling. There are 5 children which cannot be cared for by adoptions without huge human cost to each child.
    I would find that the children be cared for by long term foster care in 1 home or homes close to each other where the children can have regular contact, share the same schools, friends and life even though in different houses. The only ones to be watched are the social services to ensure this happens and also arrange whatever is needed to support the birth parents into a position to care for their family and if this is not possible (by my unknown
    reasons) to arrange a day a month where the whole family is re-united by supervision and family day out. The human cost is far less. The lessons are great to the children,

  7. I was brought up by a entire family where granny knew best given that her older years and life experience taught her well. It did not come from books.
    The greatest lesson she taught was that you dont throw something away just because its broken. With love and care it can be made as good as new.
    That money and status although pleasing are alway less worthy than love and care.
    That when you sit down to eat, always be grateful, for someone, somewhere has nothing.
    And when I ponder on the greater scheme of things where often small yet repairable reasons of children being removed in the courts I also think of all those children growing up in a throw away society while all those children being ignored have nothing.
    And then I think of all the soldiers with all the principles of preserving their families who gave their lives in war and peace to a country that so readily destroys them.
    Yes, it may be pleasing to have status and money but the tree of life makes us more human and wise.
    One day the true cost will be obvious.

  8. And just as a last comment. Adoption with its cash incentives was brought in and sold to the public as a saviour to all those children lost in the care system to give them a chance of a family.
    But with cash comes corruption and now its a free for all where most adoptions are for children under the age of 4yrs old and 4000 unborn babies are placed on child protection orders and removed at birth or shortly after.
    I believe this has become more a market for supply and demand and nothing to do with the childs best interests.

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