Placement orders v Court of Appeal part 8

Re F (A child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1277.html

Another Placement Order overturned on appeal (not sent back for re-hearing this time). Although at first glance, this might look like something new, or a development of the post Re B changes to adoption law, it actually turns out to be revisiting existing law from 2008 and determining which of two categories the children in question fell into.

The Court of Appeal decided that this case had significant parallels with Re T (Children : Placement Order) 2008   :- sadly the links to Re T in the Baiili piece take you instead to the worlds of high finance, so am grateful to Jerry Lonsdale for this link

http://www.familylawweek.co.uk/site.aspx?i=ed1101   .

In effect, in Re T, although the original Court had decided that the best placement for the children long-term would be adoption, there were considerable uncertainties about whether such a placement was actually in the best interests of the child because there were uncertainties about that issue – there was some specialist intervention required first and that they were not suitable for an adoptive placement at that stage; and it could not be certain that they would ever actually be ‘ready’

The Court of Appeal overturned the Placement Order in Re T

1. Hughes LJ gave short shrift to the idea that there should be no placement order if it was anticipated that there would be real difficulty in placing the child. He accepted that a placement order could be made even if there was a real possibility that an adoptive placement would not be found at all. He said that “mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order” (§17) and that:

“a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the Judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not.”

1. The key passage of Hughes LJ’s judgment for our purposes is, in my view, §18. There he said:

“But the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were, at present, not suitable for placement for adoption. It would not be known whether they ever would be until a particular exercise had been carried out, in the form of the specialised foster placement over several months. And as the guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys’ best interests, because their needs could better be met by the kind of substitute family found only in long term fostering.”

1. Accordingly, the court in Re T found that it had been premature of the judge to find that adoption was in the boys’ best interests and to make the placement order. Amongst the reasons that the trial judge had given for making the placement orders was that this would give the local authority the greatest possible certainty and flexibility for the future, enabling them to place the children at short notice (see §13) but those potential benefits were not sufficient to alter the outcome, as Hughes LJ made clear in §19.

In this particular case, the arguments before the Court of Appeal were whether the case before them had sufficient parallels with Re T to make it correct to overturn the Placement Order (as the parents argued) or whether the two cases were distinguishable on their facts i.e that it was a Re P case, which justified a dual approach of searching for an adoptive placement even though one could not be sure that one would be found and if not, the plan would become long-term fostering.  (You may recall from recent blogs there being some issue about whether Re P and Re B-S are incompatible with regard to that dual planning approach)

The critical difference is this

1. If what you are saying is that  it is too early to say that adoption is in the child’s best interests  (if so, Re T applies and a Placement Order ought not to be made)

2.On the other hand if what you are saying is that  an adoptive placement might not be found for this particular child because of the characteristics or features of the child, but that it is worth trying to find one (If so, it is a Re P case, and a Placement Order could be made if the other statutory requirements were made out)

There is a helpful clarification from the Court of Appeal in N S-H v Kingston upon Hull 2008

http://www.bailii.org/ew/cases/EWCA/Civ/2008/493.html

“In these circumstances there is a real prospect that the mother can persuade the court that it is not currently appropriate for the placement order to remain in being. For it is an insufficient foundation for a placement order that the long-term aim of the court is that the child should be adopted. The necessary foundation is that – broadly speaking – the child is presently in a condition to be adopted and is ready to be adopted, even though in some cases the court has to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement or even of failure to find one at all.”

So, if the child is NOT YET ready to be adopted and there are some intermediate steps, a Placement Order should not be made, and the LA should carry out that work, and make an application for a Placement Order if the work places the child in that position of being ready to be adopted.   That does lead to the potential gray area that if the preparatory work is going to take about the same time as the search for an adoptive placement, following this line of authority would mean the child being ready for adoption, but having to wait for the litigation to make the order.

Back to Re F  (apologies for the amount of law involved in that, this is rather a tricky situation)

1. We can see from the justices’ reasons that Mr Cranfield, who has appeared for F at all stages of this case, submitted to the justices that it would be premature to make a placement order “because of the uncertainty surrounding the therapy [that L needed] and its duration and outcome”. He cited Re T and NS-H v Kingston-upon-Hull City Council and MC to them but they felt that the present case differed from those cases “in that the Local Authority have a clear, long term plan for adoption which includes the provision for adoptive parents to be involved in L’s ongoing therapy”.

1. In their resumé of the evidence, the justices said that all the professionals involved in L’s care agreed that adoption would give her the best opportunity of security and permanence, that the adopters would need to be highly skilled, that it may therefore take some time to identify appropriate adopters and that delay needs to be minimised in L’s best interests. They also recorded that the guardian had agreed that LA needed to start the search for adopters as soon as possible so that they could be drawn into the therapeutic process with L. They concluded that it was in L’s best interests to make a placement order so as to give LA the earliest opportunity to identify an appropriate adoptive family for L.

1. Absent from the justices’ resumé, however, was any reference to the evidence of the psychologist that it would not be known until some way into the therapy whether adoption would ultimately be in L’s best interests.

1. Dealing with the appeal from the justices, Judge Orrell carefully set out the evidence that the psychologist had given, including that the programme of therapeutic parenting that L needed was designed to strengthen the bond between her and her carer which “inevitably leads to serious questions being raised as to whether it would be in L’s interests to be moved and indeed, if she would cope with such and settle in a new placement”, that “a judgment would have to be made at a later date as to whether the potential benefits of being adopted would outweigh the potential problems caused the child by moving her from a secure base and severing emotional ties to her foster carers”, that “it is difficult to make predictions or recommendations at this point”, and that one “can’t really know until about 12 months elapse whether the child can be moved or placed elsewhere”.

1. The judge commented that it was quite difficult to ascertain the burden of the evidence before the justices and he reminded himself of the advantage that the trial court has over the appeal court in that it has seen the witnesses. He distilled his own summary of the psychologist’s recommendations. It is notable that it makes no reference to her evidence, which he had cited earlier in his judgment, that it would not be possible to say until some way into L’s therapy whether a move to adopters would actually be in her best interests.

1. At §33, the judge correctly isolated the essential issue in the case as being:

“Whether, on the one hand, the Justices were entitled to say that, at the date of the hearing, adoption was in L’s best interests so that she ought to be adopted, notwithstanding that important work had to be done with her prior to placement and after placement and that finding a suitable adopter might be very difficult and might be impossible or, whether on the other hand, important work had to be done with L at the end of which (and only at the end of which) it would be known whether an adoption was going to meet her needs or whether long-term foster care with skilled carers would meet her needs better.”

One can see that the possibility that this was a Re T case, in which it was too early to say that adoption was in the child’s best interests, was a live one. The County Court (having itself heard the case on appeal from the Magistrates) decided that this was a case where the Court was satisfied that adoption was in the child’s interests and a Placement Order was made (i.e that it was a Re P case, not a Re T case)

The Court of Appeal disagreed with that analysis (and if one accepts the psychologist’s evidence, one is driven to the conclusion that this is indeed a Re T case)

1. Despite the resourceful attempts of the LA and the guardian to persuade us that this case can be distinguished from Re T, I am afraid that I cannot see any proper distinction. However much agreement there was that adoption would be the most secure outcome for L if it was ultimately possible to place her, the clear evidence of the psychologist was that it would not be possible to tell whether adoption would in fact be the right course for her until some way into her therapy. The guardian was saying something not dissimilar in the passage of her evidence that I have set out above. Of course, when the question does come to be addressed when the appropriate point in L’s therapy has been reached, the answer is likely to depend not only on the progress L has made but also on what adopters are available. However, that does not detract from the bald fact that when the justices heard this case, the evidence was not such as to establish that L’s welfare throughout her life required adoption. This was not a Re P case because the uncertainty was not about (or not only about) whether adopters would be found, it was about whether adoption would turn out to be right for L or whether long term foster placement may be the more appropriate option.

1. I have, of course, given careful consideration to the advantage that the justices had in that they heard the witnesses give evidence. However, they appear to have failed to take account of the manifest uncertainty over what would turn out to be right for L, as did the judge as can be seen from his omission of this element of the psychologist’s evidence from his summary. This uncertainty was central to the determination of the placement application. On the facts of this case, in my view it was wrong to have granted the placement order.

1. I acknowledge that there are disadvantages in LA not having a placement order. It will almost inevitably be more difficult for them to encourage people to put themselves forward as prospective adopters for L and we were told that they will not even be able to find out what resources adoption agencies have available. However, the fact that the proper interpretation of the law has inconvenient consequences does not justify adjusting that interpretation. Secondly, granting a placement order in circumstances such as those which prevail in this case would also have undesirable consequences as Mr Cranfield pointed out. When the time comes to determine whether or not adoption is the best plan for L, there may be room for considerable debate but there will be no obvious forum for that. LA would have no obligation and, subject to the possibility of applying for the revocation of the placement order, possibly no power to return the matter to court. The guardian’s role would have ended with the making of the placement order. As for the parents, in order to play a part in the decision, they would probably have to seek leave to apply for the revocation of the placement order. To obtain this, they would need to establish a change of circumstances and I am not entirely sure whether they would be able to do so, given that it could be said that uncertainty over the plans for L had existed from the outset.

1. It was for these reasons that I reached the clear view that a placement order should not have been made and that the appeal should therefore be allowed.

1. It follows that the placement order made by the justices and affirmed by Judge Orrell must be discharged. We considered whether the appropriate course would be to remit the case to first instance for the application to be reheard. However, until L has made some progress in therapy, it seemed likely that LA would remain unable to establish their case for a placement order.

For the first time, one of the many elephants in the room with the Court of Appeal’s rapidly developing jurisprudence on adoption was dealt with – saying that the best option was for the LA to apply for a Placement Order in due course if the child was ready for adoption, the Court of Appeal noted

I was dismayed to learn that public funding may not be available to the parents to contest such an application. I would view that as wholly unacceptable in proceedings which may lead to the permanent severance of the relationship of parent and child. 

That at least, is a sentiment I can wholeheartedly agree with, and one which possibly opens the door for a brave soul to drop hints to the Legal Aid Agency that a refusal of funding for a parent fighting adoption outside of care proceedings would be Wednesbury unreasonable.

Although this case falls slap bang in the middle of the biggest judicial recalibration on adoption of my lifetime, I think that it probably would have been decided this way even before Baroness Hale’s speech in Re B put the fear of God into the Court of Appeal.  It is more of a reminder / determination on the facts whether this was a Re T, or Re P case.

That reminder may lead to some curious arguments and submissions that “such and such a child is too damaged to be placed for adoption without preparatory work”.   It is not that uncommon to hear for example, that before the child could be placed for adoption there would need to be age-appropriate discussions and groundwork for the child about what that would mean, or that the reduction in the level of contact would be a necessary precursor. Does that mean that the child is not, at the time of making the order, “ready”?

So, how ready is ready? Does the child have to be ‘ready’ for adoption very shortly after the Placement Order is made? (i.e if a match were made in the next fortnight?)  Or does the child have to be ‘ready’ within the realistic timescales for identifying a suitable placement? Or something else?