Court of Appeal affirms that in "an exceptional case", identity of optimal adopter can be considered in care proceedings

In a case that "raises an important point of principle" in regards to the court’s scope of consideration in care proceedings, a father’s appeal has been dismissed.

Last year, Her Honour Judge George made a care and placement order in respect of a little girl. B was born in Spring 2016 and had been in foster care ever since. Her older brother, H, was adopted into another family the same year. Crucially, Judge George was tasked with deciding whether B should be placed with her brother’s adoptive parents or whether, as per the father’s preference, she should be placed with her father’s cousin, I, and her partner, R. Ultimately, the judge concluded that the "benefits of growing up with a full sibling outweigh the benefits of a family placement" and determined that an adoption order was necessary to meet the child’s needs.

The father subsequently sought permission to appeal, which McFarlane LJ granted on 13 October 2017. The appeal was supported by the mother, I and R and was opposed by both the local authority and B’s Guardian. It was brought before Sir James Munby, President of the Family Division, Lord Justice Davis and Lord Justice Underhill the following month, with judgment reserved until 24 January 2018.

A point of principle

The significant "point of principle" raised by the appeal is defined by Munby P, who leads the judgment, as relating to the ramifications of the decision he himself came to in Re T (A Child) (Early Permanence Placement) EWCA Civ 983, 1 FLR 330. In this case, Munby P made clear that:

“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 has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”

Munby P traced this principle to the "very earliest days" of the Children Act 1989, calling attention to its application in Re G (Minors) (Interim Care Order) 2 FLR 839 and in Re A; Coventry County Council v CC and A EWCA Civ 1383, 1 FLR 959. However, echoing caveats found in these earlier judgments, Munby P did recognise in Re T that "there might be ’an exceptional case justifying departure’ from this general approach".

The principle that, as a rule, the merits of proposed adopters will not be evaluated during care proceedings, was central to the father’s grounds for appeal. His counsel put forward that Judge George "erred in allowing her decision to become a competition between the adopters and the kinship carers...without essential information about one of the options", resulting in an unfair assessment. In doing so, it was posited, she misapplied the learning in Re T.

An exceptional case?

On appeal, Munby P did not accept the father’s complaint. Devoting a substantial portion of his judgment to quoting directly from Judge George, he highlighted that she had not, in fact, treated the task before her as weighing up of the various merits and/or shortcomings of the two placements, nor had she stated such an intention.

Indeed, Judge George made clear that "it is the principle of adoption that the court is considering in the particular facts of this case, not choosing the better of two alternative placements." Yet she conceded that a "degree of comparison" between the two placements was "unavoidable" when assessing B’s welfare needs, due to the judge’s prior knowledge that the prospective adoption would result in B living with her biological brother.

In weighing the pros and cons of each option the court must steer a course between the known fact that has already been placed for adoption and trying to avoid it being a competition between two possible placements.

-Her Honour Judge George

Munby P agreed, pointing out that ignoring this crucial fact of circumstance would mean neglecting her statutory duties under Section 1 (4) of the Adoption and Children Act 2002 which stipulates that the court has regard to the child’s relationship with its family members.

How else was the judge to proceed? She was confronted with the fact – the reality – that B’s only full sibling, H, a sibling close to her in age, had been adopted and that H’s adoptive parents were willing to adopt B.

-Sir James Munby

Returning to the case law, he agreed with the observations made by Counsel for the local authority - that nothing in Re T suggests that "the court can ignore a crucial factor which is necessarily concomitant with a particular placement."

Other grounds for appeal

The father also contended that Judge George had erred in prioritising the sibling relationship over B’s wider familial relationships. Again, Munby P disagreed, making clear that her conclusion was the result of careful and fair consideration of all the evidence; just because this lead her to favour the placement with H, it does not follow that she was biased against the kinship placement but rather that B’s future relationship with H "tipped the balance" in favour of the adoption. Similarly, he found that Judge George was entitled to pay regard to the untested nature of I and R placement, as well as the risks and uncertainties associated with this placement.

Both Lord Justice Davis and Lord Justice Underhill concurred with Munby P’s conclusions and the appeal was dismissed. The case serves to highlight the delicate nature of care proceedings, and the importance of finding bespoke solutions for vulnerable children.