H (care and placement application), Re [2018] EWFC B36 (20 April 2018)

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England and Wales Family Court Decisions (other Judges)

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URL: http://www.bailii.org/ew/cases/EWFC/OJ/2018/B36.html
Cite as: [2018] EWFC B36

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IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.


		CASE NO: OX17C00133

IN THE FAMILY COURT SITTING AT OXFORD
AND IN THE MATTER OF CHILDREN ACT 1989 AND THE ADOPTION AND CHILDREN ACT 2002

20th April 2018

B e f o r e :

HHJ Vincent
____________________

Between:

	OCC	Applicant
	and
	AB	First Respondent
	and
	CD	Second Respondent
	E, F, G and H
	(acting by their children's guardian KT)	Third, Fourth, Fifth and Sixth Respondents

____________________

Alex Forbes instructed by Oxfordshire County Council
Kit Firbank, instructed by Brethertons, solicitors for the First Respondent mother
Chloe Wilkins, instructed by Johnson & Gaunt, solicitors for the Second Respondent father
Jason Green instructed by Oxford Law Group, solicitors for the children
Hearing dates: 16th, 17th, 18th, 20th April, and 2nd May 2018
____________________

HTML VERSION OF JUDGMENT
____________________

Introduction

I am concerned with four children, E, who is seventeen, F, who is sixteen, G, who will be twelve next week, and H, who will be six in June. Their parents are AB and CD.

The family has been known to the local authority for about fourteen years. On 23^rd August 2017, all four children were moved to separate foster placements, their parents having given consent to them being accommodated by the local authority pursuant to section 20 of the Children Act 1989.

The event that triggered the children's removal from the family home and into foster care was that G had alleged her paternal grandfather had been kissing her, had given her a bath, that she had seen him naked in the bath and they had lain together on a bed, and that her grandfather had sat astride her. These allegations are denied by her grandfather, although he has accepted that he had given her a bath.

G had previously made a number of other allegations that her brothers and sister had sexually abused her, and they had been watching sex tapes in the house. In 2015 she alleged that F had anally raped her. In 2014 E had made an allegation that F had watched her in the bath and had asked her to strip and lift her top.

G's allegation against F led to him living away from the home from April 2015 until October 2016. The police have taken no action against him.

More generally, the local authority documents the children displaying sexualised behaviour and using sexualised language, and having access to pornographic material on the internet. There have been significant concerns that both E and G are vulnerable to the risk of child sexual exploitation.

There are long-standing issues around neglect of the children's basic care needs, they are described as regularly presenting as dirty, unclean with long and dirty nails, greasy hair and unbrushed teeth, and at times smelling strongly of body odour. The local authority has raised concerns about the children's routines, their diet, and the general state of the home, which is described as in a neglectful, cluttered and unhygienic condition.

The local authority is also concerned that the children have been exposed to domestic abuse in their parents' relationship, and that more generally, their parents are not able to meet their emotional needs.

Proceedings were issued on 4^th September 2017, the day after E's seventeenth birthday. The Court could not therefore make any orders in respect of her, but her parents have continued to give their consent to her remaining in foster care. She herself has been assessed not to have the capacity to instruct a solicitor or make decisions about her accommodation. Dr Gemma Grey, who assessed her, concluded that her cognitive abilities vary, and her capacity could improve with support. Her full-scale IQ is on the 3rd percentile.

The other three children have remained in their foster placements throughout the proceedings, but since 6^th September 2017, pursuant to interim care orders.

Dr Grey also assessed the children's father. She concluded that he does not have a learning disability, but does have an extremely varied cognitive profile. His reading abilities are very limited.

The maternal grandparents underwent a full kinship assessment, the outcome of which was negative. They have not sought to challenge this assessment nor otherwise to intervene in proceedings.

I ordered an expert assessment of the family's functioning by FASS (Family Assessment and Safeguarding Service). FASS was instructed to identify each of the children's particular emotional, psychological and therapeutic needs, the ability of the parents to meet those needs, and an assessment of the sibling relationships. The parents were observed having contact with their children and it was regarded as being of poor quality. In its conclusions, the report (signed by Ms Anna Motz) does not recommend that any of the children should be returned to their parents' care, and does not consider that either of the parents could be regarded as suitable candidates for work with their service or any other. In summary:

(i) the mother accepts virtually no responsibility for her children's difficulties and is highly resistant to psychological intervention. She struggles to identify, and therefore protect against, risky individuals. She has impaired capacity to reflect upon the children's states of mind, and scapegoats G. She 'is not able to offer any of her children a satisfactory level of care at the present time…or in the foreseeable future';

(ii) the father is hostile, apprehensive and suspicious. He consistently attributes all blame to G. He takes no responsibility for any deficits in his parenting. He had little conception of how to understand his daughter G. He had very little insight into his own or others' minds or motivations. He is emotionally and physically isolated but with a sense of grandiosity at odds with his actual abilities. He had no insight into the reality of his children's experiences.

FASS concludes that the 'risk posed to these children if they were to be cared for by either parent [is] unacceptably high…the parents do not seem willing or able to engage in meaningful work….they remain in an entrenched position of…exonerating themselves from any blame…we would not recommend that these children are returned to the care of CD and AB'. Ms Motz writes, 'as the parents present as adamant that they have no difficulties in their relationship or parenting, and present as so fused and set in their views, we did not see scope for making progress with them either individually, together or in a group. They showed resistance to engagement, denial and minimization in terms of the harm to which their children have been exposed, and little awareness of their own limitations or a wish to improve their parenting, despite their expressed concern and love for all four of their children.'

The FASS team met with each of the children individually but also planned a group session, with all four children attending. G and F were both anxious about meeting one another, and G was very upset about this afterwards, but they coped well in the assessment. It has been reported that H was very distressed in the car on the way to the appointment, and was sick, and in the circumstances the foster carer judged it best that he be taken home. A decision was made not to rearrange the group session so that H could attend.

The social worker in this case is AG. She has prepared two statements, drafted the care plans for all the children and carried out a parenting assessment of AB and CD. In the placement application she is the author of the permanence report. Her parenting assessment reaches the following conclusions about the parents:

• The parents are reactive rather than proactive, and do not appear able to identify potential risks, assess risk, and act accordingly;

• Inappropriate sexual boundaries and access to sexual material is entrenched within the family. The parents have failed to safeguard the children from this in the past, and are still not transparent about the history;

• The parents have been unable to protect the children from risky adults, attributing blame to others;

• Whilst there have been considerable improvements into the home conditions, the parents lack insight or acceptance of the past failings in this regard, and the prognosis for sustainable change is therefore guarded;

• The parents lack insight into their own poor standards of personal hygiene and are therefore unable to model self-care skills to their children;

• The parents scapegoat G for the family's problems without seeking to understand the reasons for her emotional and behavioural difficulties, or empathise with them;

• The parents fail to accept any responsibility for their children's behaviours and are therefore resistant to intervention. The prognosis for change is poor.

Parties' positions

Threshold

There is no dispute that the threshold for making public law orders is crossed. The original threshold document is very detailed, but the parties have helpfully worked together to agree a simplified threshold document, which I have annexed to this judgment.

Because E was seventeen when proceedings were issued, I have not made any orders concerning her, save to direct the assessment of her capacity. It was agreed by the parties that, notwithstanding some delay, her situation would be better considered separately from her siblings, and it is now anticipated that there may need to be a transfer of her case to the Court of Protection. I met with E in November last year. She was understandably upset and preoccupied about her boyfriend S, as he had ended their relationship by text the previous day. Nonetheless, to her credit she still wanted to come and see me, and it was a pleasure for me to meet her. As she has said to others, she told me that she liked her foster carers, but she would much rather be at home.

F and G

The local authority, represented by Mr Forbes, proposes that F and G should be placed in long-term foster care. The guardian, represented by Mr Green, supports the local authority's plans for F and G. The mother, represented by Mr Firbank, and the father, represented by Miss Wilkins, do not oppose them.

Contact is potentially complicated because of the dynamics between some of the siblings, because E's future cannot be settled at this stage, and in the light of the application that H be placed for adoption. The parents accept the local authority's proposals that they should see F and G (separately) six times a year, and that E may join in with these contacts.

The local authority seeks both care and placement orders in respect of H. The parents had hoped that of their four children, they may be able to have H returned to them, but at the final hearing they acknowledged the weight of the professional evidence, and they told the Court they did not oppose the making of a care order for H. This decision must have been very difficult for the parents to make. The local authority's application for a placement order in respect of H is opposed, in circumstances where he is two months short of his sixth birthday, has lived as part of a sibling group for most of his life, and where it is proposed that he would be the only child of the family to be placed for adoption.

The parents' primary submission is that the application for a placement order should be refused and the court should find that only long-term foster care will meet H's needs. Alternatively, it is submitted that the Court should adjourn the proceedings for further assessment of H's relationship with his siblings, given that FASS was unable to see them all together. If, contrary to those positions the Court does make a placement order, the parents say that it should be an open adoption, providing for continued contact between H and his birth family. In any event, they seek contact orders pursuant to section 26 of the Adoption and Children Act 2002 for both the siblings with each other and between H and his parents.

The guardian considers this to be a finely balanced case, but does support the local authority's application for care and placement orders in respect of H.

Further submissions in respect of long-term foster care

I heard evidence and submissions over the course of three days on 16^th, 17^th and 18^th April 2018. I was due to hand down judgment on the morning of 20^th April 2018 but minutes before I came into Court, the parties became aware that on 19^th March 2018, H's foster carer had a conversation with the current social worker CP, in which she indicated that she would be prepared to have H with her for the long-term. CP was sitting in Court when the previous social worker, AG had been giving her evidence. AG was asked whether she had asked H's foster carer if she would be prepared to foster him throughout his childhood. AG said she had not, essentially because the local authority was not planning long-term foster care as an option for H. It is unfortunate that CP did not mention the conversation she had had on 19^th March with her legal team at that point. If she had, this could have been dealt with in evidence, and closing submissions.

I considered there was a risk of unfairness to H's parents if I handed down judgment without giving the parties an opportunity to make representations about this new information. Although it meant a short further delay to the conclusion of the case, I needed an opportunity properly to consider the potential impact upon the Court's welfare assessment. I invited the parties to put further submissions to me in writing and postponed the time for handing down this judgment until 2^nd May 2018.

For the parents, Miss Wilkins and Mr Firbank filed joint submissions. This was followed by a position statement from Mr Forbes for the local authority, the content of which was endorsed and adopted by Mr Green for the children's guardian.

On behalf of the parents it is submitted that the information now available about H's current carer adds weight to the submissions already made in opposition to the placement order. It is said that by not disclosing this information the local authority shows itself to have been closed to the idea of long-term foster care as an option for H. The Court is invited to adjourn the proceedings for a further period of time in order to make further enquiries of the foster carer to find out exactly what she would be prepared to offer H, for example, whether she might consider an SGO or an open adoption in the future. It is argued that this further information would be required to enable the Court to carry out a full assessment under section 1(4)(f) of the Adoption and Children Act 2002 into the ability and willingness of any of the child's relatives, or 'any other person in relation to whom the court or agency considers the relationship to be relevant', to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs.

Mr Forbes argues that there is no need for an adjournment, nor for any further evidence as suggested. He says if such information were needed to carry out a full Re B-S analysis, the parents could have asked for it themselves at an earlier stage, but they did not. Mr Forbes refers me to Re W children: care plan); Re S (children: care plan) [2002] UKHL 10, in which Lord Nicholls made clear that while the Court operates as the gateway into care, by making a care order, but thereafter it has no continuing role; the local authority holds responsibility for the care plan. Mr Forbes identifies the process of a matching a child to an appropriate long-term foster carer as a clear example of a duty that falls upon the local authority in the exercise of its parental responsibility under a care order, and does not form part of the Court's decision making. Mr Forbes therefore argues that it would be illogical, and impermissible, for the Court's decision as to whether or not to grant applications for care and placement orders to encroach upon questions of the particular circumstances or wishes of a particular foster carer. He says it is not part of the Court's role to contrast adoption with placement with a specific foster carer, but to look at the two legal frameworks.

The law

The applications for care orders are made pursuant to section 31 of the Children Act 1989. The Court only has jurisdiction to make a public law order if the threshold for making orders is crossed. As noted above, it is agreed that the threshold is crossed in this case.

Thereafter, the Court has to consider what order to make, the paramount consideration of the court being the children's welfare, and in particular having regard to the factors set out at section 1(3) of the Children Act 1989.

The application for a placement order is made pursuant to section 22 of the Adoption and Children Act 2002 ("ACA 2002").

A placement order is one which authorises a local authority with a care order for a child, to search for, and then to place that child with prospective adopters (section 21 ACA 2002). A placement order cannot be made without the consent of the child's birth parents, unless the court is satisfied that the parent's consent should be dispensed with (section 21(3)(b) ACA 2002). The Court cannot dispense with the consent of any parent to the child being placed for adoption unless the court is satisfied that 'the welfare of the child requires the consent to be dispensed with' (section 52(1)(b) ACA 2002).

Whenever a Court is coming to a decision relating to the adoption of a child, the paramount consideration of the court must be child's welfare throughout his life (section 1(2) ACA 2002. In considering the child's welfare, the Court must have regard (among others) to each of the matters set out at section 1(4) of the Act.

The court must always consider the whole range of powers available to it and the court must not make any order under this Act unless it consider that making the order would be better for the child than not doing so (section 1(6) ACA 2002.)

In addition, the European Convention on Human Rights applies in every case of this nature – to the applications for care orders as well as the application for a placement order. Article 8 provides that, '1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

In Re B [2013] UKSC 33 the justices of the Supreme Court considered the approach the Court should take where the local authority's application is for adoption. Lord Neuberger said at paragraph 82 of his judgment:

'What the Strasbourg jurisprudence requires (and, I would have thought, what the rule of law in a modern, democratic society would require) is that no child should be adopted, particularly when it is against her parents' wishes, without a judge deciding after a proper hearing, with the interests of the parents (where appropriate) and of the child being appropriately advanced, that it is necessary in the interests of the child that she be adopted.'

At paragraph 104 he said:

'… adoption of a child against her parents' wishes should only be contemplated as a last resort – when all else fails. Although the child's interests in an adoption case are 'paramount' (in the UK legislation and under article 21 of UNCRC) a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.'

Baroness Hale said at paragraph 198 of Re B [2013] UKSC 33:

'Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. …

Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interests of the child.'

In Re B-S, and more recently, Re H [2016] EWCA Civ 1131, the Court is reminded of the essential need for a Court carrying out an adoption evaluation to have proper evidence from professionals showing they have undertaken a full evaluation of the options for the children and have given a reasoned account of any recommendation that is made. The second essential is that the judge carries out a full comprehensive welfare evaluation of all the relevant pros and cons. In Re G [2013] 3 FCR 293, at paragraph 44, the President of the Family Division said:

'We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. …

"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."

I have been referred by Mr Firbank and Miss Wilkins to the case of Re S-F (a child) [2017] EWCA Civ 964. It is a case in the Court ordered that a four-year old boy should be placed in long-term foster care. The local authority had sought a plan for adoption, with a contingency plan for long-term foster care if an adoptive placement could not be found. It was common ground between the parties, and the view of experts, that because of his particular characteristics, the child would need direct contact with his parents. The local authority's appeal was dismissed. The Court of Appeal noted that the appeal did not raise any new issue of law or principle. It was noted that the evidence before the Court in respect of the placement order was limited; the judge did not have a permanency report, nor evidence about the contingency plan for long-term fostering; there was no evidence about how the child had been in foster care. There was no note of the agency decision maker's record of decision. Given the limited evidence, the Court of Appeal held it could not be said that the judge had been wrong in the balancing exercise he undertook, nor his conclusion that it had not been established that adoption should be preferred over long-term fostering. Ryder LJ highlighted the need for the court's reasoning to be related to evidence about the child concerned:

'The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for the child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.'

As part of the further submissions in respect of the new information from H's foster carer, the parties referred me again to Re B-S. I was also referred and reminded myself of the case of Re T (a child)(early permanence placement) [2015] EWCA Civ 983, but I agree that it is not directly relevant to the facts of this case.

Miss Wilkins and Mr Firbank referred me to Re A (children) [2015] EWCA Civ 1021, in which a judge refused to make placement orders in respect of three children aged three, five and six, who had a close bond with each other and their three older siblings aged ten, twelve and thirteen. The need to have regard to the section 1(4) Adoption and Children Act 2002 checklist was emphasised.

Mr Forbes referred me to Re V (Children) [2013] EWCA Civ 913 in which the Court of Appeal substituted care and placement orders for children aged nine and four in circumstances where the trial judge had refused applications for placement orders on the basis that there was a long-standing relationship between the children and their parents which he saw as valuable.

I have read and considered these cases but remind myself that each case turns on its own particular facts, and I must carry out my analysis and reach my conclusions having regard to the evidence and the particular circumstances of this case.

Contact orders

Where a plan for adoption is authorised under a placement order, contact is regulated by ACA 2002, sections 26 and 27.

Mr Firbank has referred me to the case of Re P [2008] EWCA Civ 535. In that case placement orders were made in respect of two siblings, together with contact orders providing that they had contact with one another at least seven times a year. This was another dual planning case, and the two children concerned were described as 'badly damaged and very needy'. It was common ground that the need to preserve a meaningful sibling relationship was vital, indeed it was viewed by the guardian as of such importance that it indicated against a placement order at all, but if an order was to be made, the guardian said it should be accompanied by a section 26 contact order. The judge did make a placement order, but predicated on the firm conclusion that the relationship between the siblings was fundamental and needed to be preserved, also made contact orders. The Court of Appeal approved the decision below. Given the finding that the sibling relationship had to be preserved, the Court of Appeal said the question of contact should not be left as a matter of agreement between the local authority/ adoption agency and the adopters, but should be a matter for the Court to make orders for contact if required.

Each case must be determined on its own facts. In Re R [2007] EWHC 3031 (Fam), Sumner J declined to make a s.26 order partly on the ground that to do so would restrict the range of available placements. He comments at paras 128 – 129:.

'I do not therefore consider that there are circumstances either in adoption or in long-term foster placement that give rise to the need for a s.26 order between the children and their parents and family. It is not only restrictive on potential placement, it makes no allowance for the dynamics of how the children will develop, their changing attitude towards their parents and family, and the reaction to those changes.

Between the children themselves I recognise that the need for an order is stronger. Nevertheless the dynamics of their changing relationship and the possible restriction on placement with a family otherwise suited to adopt them rule against the making of such an order.'

Re C (Contact) [2007] EWHC 3495, [2008] 1 F.L.R. 1151 is cited in the Family Court Practice 2017 (page 267) as authority for the proposition that where the court is satisfied that the local authority is committed to the level of contact endorsed by the court, an order for contact is unnecessary.

Evidence

I have had regard to the contents of the main bundle, which includes statements from the local authority, the parents, the assessments referred to above and the guardian's reports. I have read the checklist bundle which includes notes of core group meetings and contact records, and, in respect of the application for a placement order in respect of H, I have read and considered the contents of the placement bundle which includes the permanence report and minute of the Agency Decision Maker's reasons for supporting the local authority's care plan.

Although the parents chose not to give oral evidence, I have read and considered carefully the statements they have filed.

I heard oral evidence from AG. Her reports are detailed and she has built up a good knowledge of the children and the family dynamics. She has observed contacts and also on occasions been asked to go in and support the family when contact has run into difficulties.

She was questioned about her analysis, and in particular her recommendation that sibling contact be promoted, protected and encouraged. It was put to her that H's need to maintain links with his birth family, in particular his siblings, was very important, and that the weight of her evidence and that of the ADM was to that effect. It was then put that if H were moved to an adoptive placement with new parents who were unable to support him with this, those ties would be lost. In the circumstances, it was suggested that an adoptive placement could not meet his needs, as there was a real risk that he would be moved to an adoptive placement that did not provide for continuing sibling contact.

AG was clear that her care plan was for adoption but with continuing sibling contact. She said that was her clear recommendation, and that would be the starting point for any search by the family finding team, accepted by them as a realistic task. She was however clear that if sibling contact post-adoption was not a possibility then she still regarded adoption as necessary to meet H's welfare needs, but there would have to be a review in the light of all the circumstances before any thought was given to changing the care plan – this is not a dual planning case.

I was impressed by AG's evidence. She told me that she had weighed matters very carefully with regard to all the children and in particular had spent a great deal of time considering the pros and cons of the options for H. This is clear from the body of work that she has produced in the case, distilling a long history of different concerns, showing good understanding of each of the children's different needs, and carrying out to my mind a fair and balanced parenting assessment. Her analysis of the options for the children does have regard to their particular circumstances and is evidence of the thought and careful attention that she has given to this case.

I also heard from the children's guardian. She has met with the children individually and spoken with their carers. She has not observed contact, but she had read and absorbed the contact records, the FASS assessment, parenting assessment and all other evidence in the case. She has I am satisfied given proper scrutiny to the local authority care plan and the reasons for her conclusions are set out clearly, supported by the evidence upon which she bases them.

She was taken to a part of her report in which she said, 'after careful thought and on the understanding adopters will only be chosen that are willing and able to facilitate sibling contact for H with all his older siblings, I consider that adoption offers the best long-term placement for H taking into account his individual needs but recognising this singles him out for a very different care plan to that of his siblings. Any plan other than adoption will potentially leave H remaining 'in limbo' and not able to put down roots.'

The care plan is for an open adoption; it looks to place H with adopters who will facilitate contact between him and his siblings. This is not an idea introduced by the guardian, but is in the care plan endorsed by her.

In her witness statement, AM of the family finding team says that 'adopters who are open to older children are aware that there is [sic] more likely to be direct contact plans'. She says that the majority of prospective adopters are open to facilitating direct contact with other siblings who are adopted, but in her experience, are more cautious when siblings remain placed within the birth family, or are still having direct contact with birth parents. If a placement order were made for H, she thinks it would take about six months to identify prospective adopters, but 'it is important to highlight that the nature of the proposed sibling contact plan could hinder this significantly.' She says the team would need to be mindful of timing and if they found the right match but the adopters were not open to direct contact with siblings due to confidentiality issues, then they 'have to consider whether the placement may need to take priority over direct sibling contact.'

The guardian was asked about this. As AG had said a number of times, the guardian also stated and then reiterated that while she regarded sibling contact post-adoption for H as an important aim, and that it should be achieved if possible, if it could not be achieved, she still considered there should be an order placing him for adoption.

It was put to the guardian that this represented a significant shift from saying in her report that she would endorse the care plan only on the understanding that it was for open adoption. She was clear that her view remained that she supported the care plan for open adoption, as put forward by the local authority, but in the light of the evidence of the family finder which came in after her report, she had reflected and her view was that sibling contact for H should not be a 'red line'; i.e. if not achievable, she still recommended a care plan for adoption. The guardian's report was written before she had the benefit of the family finder's statement. I would accept that the phrase 'only on the understanding that' can be taken as putting down a marker or a 'red line' that the guardian would only approve a plan for adoption if it provided for sibling contact, but the guardian is also required to review the evidence as it comes in. Having done so, and when asked in cross-examination, she has explained why she still supports the care plan for open adoption i.e. with sibling contact, but in all the circumstances does not regard it as a 'red-line' or a factor that if not achievable should tip the balance away from a placement order being made.

Applications for care orders

I have had regard to all the evidence and the factors on the welfare checklist at section 1(3) Children Act 1989.

The plan for F is to remain with his current carer for the remainder of his childhood. He is happy and settled and fully accepting of this plan, although he loves his parents and would no doubt have wished to return to them if that were possible. He is about to sit his GCSEs and, supported by his carer, he has been working very hard with his eye on achieving the grades he needs to get to college next academic year. He is rightly proud of the progress he has made this year.

He is described as very quiet and withdrawn, reluctant to talk about his feelings, and expecting little from others. Within the FASS assessment it was noted that his removal from home, and police involvement over the allegations against him were likely to have been traumatic for him. He is regarded as having made himself 'psychologically invisible' in order to manage the neglectful home environment, making minimal demands on his parents, thus compounding the neglect. He is described as a highly vulnerable young man who is now flourishing in a safe and caring placement, with a foster carer who is sensitive to his needs. In the opinion of FASS, there was 'ample evidence that he was benefitting enormously from being an only child in a quiet calm environment.'

He does not want to have any contact with G, at times he has been ambivalent about contact with E and his parents, and when he has attended contact has often been seen to keep himself apart, not taking his coat off or putting his bag down. He does speak more fondly of H, enjoys seeing him and playing football with him, although it is also noted he can (as any sibling might) find him annoying too.

Having regard to all the circumstances, and the welfare checklist factors, I am satisfied that F's welfare can only be met by his continued separation from his family and placement in foster care. I am pleased that his current carer, who has become very fond of him, would like him to stay with her into adulthood. I approve the local authority's care plan for F.

G has presented as the most troubled child of the family, and she struggles in all areas of functioning. She has a particularly low view of herself, identifies herself as the least favourite of all family members (apart from H), and as having no friends and not liked by other children. She has high levels of emotional and behavioural disturbance and is struggling in mainstream school; she is in her first year of secondary school but is not enjoying it at all and is frequently in trouble with teachers.

The FASS report notes:

'There have been longstanding and detailed reports of her worrying presentation including oversexualised behaviour, exposing herself, behaving inappropriately with adult (and child) males and making accusations of serious sexual abuse against many people. It is unclear which of these are founded as her internal sense of confusion means that she herself may be unaware of the source of the harm she has experienced and it is possible that exposure to sexual material has become muddled with her experiences. There is the possibility she has been abused or exploited directly, not protected or adequately supervised from access to sexual material, or has witnessed disturbing sexual acts in the context of poor supervision and neglect. We also note the evidence of incest and sexual abuse in the extended family and have to be open minded to the unknown extent of this. …. While it is not the role of FASS to fact find, any of these scenarios point to a serious failure to safeguard G. Her parent's lack of curiosity or alarm about these possibilities compounds our concern about their capacity to safeguard her into the future.'

She is desperate for her parents' approval, but her attention-seeking behaviour in contact can become overwhelming for her parents, and at times her father and other siblings have responded very unkindly to her. She is deeply jealous of attention her siblings get or when she perceives she has been treated differently from them. She continues to be very anxious about seeing F at all and was reportedly very distressed after the FASS assessment when she had not expected against her own wishes to be observed in a session with him. The guardian describes her relationship with E as tetchy, and they have been observed in contact to say mean and unkind things to one another. Although she likes H, the contact notes show that their relationship is not that easy and often they have been in disputes which have escalated out of control. She has said she would like to go home but her parents bully her, and the assessment of all the professionals working with this family is that she has been blamed by her parents and older siblings for the events which led to these proceedings being issued and the subsequent break-up of their family. With the devoted attention of her foster carer, she has made some progress. In a meeting with the guardian she said she agreed to remaining in foster care long term. She said that if she was not going home she would not want any of her siblings to return home.

Having regard to all the evidence and the factors on the welfare checklist I am satisfied that G's high level of need may only be met by her continued placement in long-term foster care, parented with a high level of attention and with a framework of support put in place by the local authority so as to enable her carer to meet her educational, physical and emotional needs throughout her childhood. I approve the local authority's care plans in respect of G.

I have regard to the welfare checklists set out at section 1(3) of the Children Act 1989 and section 1(4) of the Adoption and Children Act 2002. I deal first with those items which are common to both lists.

The ascertainable wishes and feelings of the child (s1(3)(a)/s1(4)(a))

The guardian reports that H has been spoken to about the plan for him not to return home and has not demonstrated any difficult behaviour or particular noticeable reaction. He continues however to have regular contact with family members and is too young to have a real understanding at this stage of the implications of the Court proceedings for him.

He is described as often complaining of tummy aches on the way to contact but generally cheering up when he gets there. He enjoys time with his family, but his behaviour is very different than it is at school and with his foster carer, and he can often become unmanageable around his family.

It can nonetheless safely be said that he loves his parents and siblings, identifies himself as being a part of their family, and would wish to grow up continuing to be a member of his birth family if that were possible.

The physical emotional and educational needs of the child (s1(3)(b))/the child's particular needs (s1(4)(b));

Age, sex, background and other relevant circumstances, child's characteristics which are relevant (s1(3)(c)/s1(4)(d))

I deal with these factors together.

H is the baby of the family and when he arrived in foster care aged five and two months he was not fully potty trained and still using a dummy, his speech was thought to be somewhat delayed. He is now however doing well at school, has made friends, learned to play in the park, eats and sleeps well.

The guardian describes H as a live-wire. His carer has not had any problems with him save that once he lashed out and trashed his bedroom. Mostly he is a kind, well-behaved boy with his carer and in school, but in stark contrast, his behaviour at contact can be rude and aggressive.

In general he is doing well and does not have any particular physical and educational needs over and above those of any child of his age and stage of development.

Until he was placed in foster care he was raised in a chaotic and neglectful environment, where his needs were not met. He has been separated from his family at a young age. Given his experiences, he has a need for security, for consistency of care, and stability, and to be protected if possible from further experiences of changes of carer.

He has grown up as part of a sibling group. The proposed care plan would not just separate him from his siblings but has H in an adoptive placement while his brother and sisters would remain in foster care, able to see one another and their parents much more often than he will be able to.

Harm or risk of harm (s1(3)(d)/s1(4)(e)

Capability of the parents and relevant others (s1(3)(f))

H's parents love him very much and are committed to caring for him, and he does not have the heightened level of needs of his older siblings. Nevertheless, the weight of the professional evidence is overwhelming that he would be at significant risk of harm were he to return to the care of his parents. They would need substantial improvements in their parenting capacity to meet his needs, but for the reasons given, in particular in the thorough and comprehensive parenting assessment and in the expert report from FASS, the prognosis for change at all, and change within H's timescales is very poor.

Likely effect of any change in circumstances s1(3)(e)

H's current foster carer has become very fond of him, and he of her. If a care order were made that provided for him to remain in long-term foster care, it is now acknowledged that there is a real possibility that he could live with her for the remainder of his childhood. This would present an opportunity for stability and security for H. He would not have to move, would not need to suffer from being separated from his carer, he could stay at his current school and could continue to spend time with members of his birth family as he does now.

If he was in long-term foster care, even though he was not living with his birth family, he would continue to identify himself as a member of that family. He would be in touch with and aware of the lives of members of his wider family, not just his siblings, but cousins, aunts, uncles, and grandparents.

I do not have any evidence before me about the particular circumstances of H's foster carer, her age, whether there are other children in the placement or likely to come into it, including whether the foster carer has other children, or plans to have. I do not know whether the local authority is likely to regard her as a good match for H in the event that its application for placement orders were refused. Given that she has not been approved as a long-term foster parent for H at this stage, there remains the possibility that he would be moved from her care to another foster placement, but given her commitment to him, at the least he is likely to be able to remain with her in the foreseeable future, and such a move would be planned and H could be well prepared for it.

If I made placement orders, I have been told that H could stay with his current carer until a match were found. Therefore he is assured at least of no significant change in his circumstances for at least the first few months after the conclusion of these proceedings, whatever the orders made.

If H were placed for adoption, once a placement is secured, the prospects of that placement providing security, stability and meeting all his needs are good. Nonetheless, to find prospective adopters who are able to meet all H's needs takes time. Even if the family finding process were not hindered by finding adopters willing to facilitate direct sibling contact, a significant further period of H's life will pass before he is moved to his new placement; based on the family finder's evidence it is perhaps unlikely to happen this calendar year. During that time H will be uncertain of his future and this is likely to be unsettling. The opportunities to spend time with his birth family will reduce during that time and this is likely to affect him. Moving to a new family and a whole new way of life will present significant challenges, however much support is in place. The ultimate severing of ties with his birth family would change the whole trajectory of his life. The impact is likely to be greater in circumstances where he is the only member of his sibling group to be adopted.

There is a reasonable prospect that H could remain in his current placement for the rest of his childhood, or if not, an alternative long-term foster placement could be found for him, thus providing him with stability and security throughout his childhood. While I must base my analysis on the evidence in the particular case, it is open to me to note the following matters about foster care, which I regard as giving rise to a risk of instability so far as H is concerned:

(i) Foster placements can last throughout a child's minority and provide loving, consistent care. However, a foster parent does not make the same commitment to a child as prospective adopters do. They are employed to look after the child, they are not committing to become their legal parent from the outset;

(ii) Even if the foster parent remains the same, H is very unlikely to have the same social worker throughout his minority but would have a series of different social workers. He would have a corporate parent. If a child is adopted the local authority has no role in their life, but in foster care they live with local authority intervention. H would be subject to routine medicals, reviews, and the need for his social worker to give permission to stay with friends or go on school trips etc;

(iii) Foster placements end at the end of childhood (unless the care order is discharged earlier). Adoption is intended to last for the child's whole life and that is expressed to the child from the outset;

(iv) Statistically, a child in foster care is likely to experience a number of placement moves, which are likely to involve not just a change of home, but often a move to a different area, a new school and a parting from friends. However committed a foster parent, their circumstances may change and that may bring about the end of the placement. There is no obligation upon a foster carer to wait until the end of a school year; moves can be sudden and unplanned. For H aged nearly six, there is a risk that he would face a number of unsettling moves of placement during his childhood and he would suffer every time;

(v) At the end of childhood, H may well want to reconnect to his birth family. Of course the local authority would support him with that, but there is a risk of reconnecting in an unplanned and unmanaged way. Because the evidence is that his parents' parenting capacity is unlikely to improve, the risks of harm to him from them being involved in his life remain. No doubt such a risk exists if he were adopted, but the commitment of the adoptive parents is for his whole life not just to the end of his childhood, so there is perhaps more prospect of continued support into adulthood to manage this.

I now turn to the additional factors that appear at section 1(4) of the Adoption and Children Act 2002.

The likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person (s1(4)(c))

There is potential that significant harm that may be caused to H as a result of an adoption order being made at his age and stage of development.

Even if placed in a loving and stable placement, the making of a care order with a plan for adoption is likely to have a profound effect on H throughout his childhood and adulthood. Adoptive parents go through a very thorough selection process, but there is no guarantee they will be able to meet all a child's needs throughout their life or that the adoption will work out, particularly where a child has reached the age of six years old and has a clear sense of his identity within a family unit with parents, grandmother and brothers. The impact of the neglectful care he received in his early years may also affect his abilities to form secure attachments to new parents, has already adversely affected his relationship with his own parents, and the ties he had with his birth family would be permanently ruptured. There is a risk that this would leave him with no secure attachments to anyone.

The potential for emotional harm is increased where the adoption was against the consent of birth parents, where the child as in this case has an existing bond with members of his birth family. The potential for damage is increased even further where the siblings of the child remain within the original family unit, having regular contact with each other and the wider family. As he grows up, he is bound to question whether there was something about him that meant he could not grow up within the same family unit, and he may feel rejected and hurt. That may or may not be ameliorated by regular contact taking place. For reasons given by the family finder, it cannot be known whether contact can be guaranteed in an adoptive placement or that it would work out well.

However, the statement of the family finder describes some of the work that can be done to ensure a child in H's position would be supported to settle and develop secure and life-lasting attachments to adoptive parents, and that the matching process works to identify parents who are able to meet a child's specific needs.

The relationship the child has with relatives or other relevant persons including (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of the child's relatives or other relevant persons to provide the child with a secure environment in which the child can develop otherwise to meet the child's needs and (iii) the wishes and feelings of the child's relatives regarding the child (s1(4)(f)).

Before considering these factors, I deal with the parents' applications for adjournments.

Parents' applications for adjournment to obtain further evidence in respect of (a) the sibling relationship and (b) H's current foster carer

Assessment of sibling relationship

The parents have suggested that the final hearing be adjourned to enable further assessment of the sibling relationship, and that I cannot properly carry out the welfare checklist analysis without that evidence. I have considered carefully the arguments put forward on their behalf, but I am not persuaded that this further evidence is needed, or in any event that an adjournment is necessary for this reason in order to resolve the proceedings justly. I have particular regard to the following:

(i) Although FASS did not observe H with his siblings they did meet with him and were able to make an assessment of his needs;

(ii) The FASS assessment explored with each of the siblings their relationship with H and his with them, there is not in my judgement a significant gap in the evidence;

(iii) To fill any gap that there is, there is a wealth of other evidence in the case about the sibling relationship, in particular from the social worker in her detailed evidence to the Court, and from the extensive contact records which I have read and considered;

(iv) Despite the gap in the evidence, the local authority acknowledges the importance of the sibling relationship to H, and the care plan is one that seeks to promote and encourage the sibling relationship by direct contact post-adoption;

(v) FASS does not have availability to rearrange the assessment at this time. It would be wholly against the interests of H for his plans for his future to be delayed for an uncertain period of time in order to enable an assessment to be completed. Given H's anxiety around attending the contact the first time, such that his foster carer judged he should be taken home, it cannot be guaranteed that he would attend a further assessment and the adjournment would have served no purpose;

(vi) There is no real prospect of having an appointment with all four children together in any event, as G was very distressed by having to be observed with F against her wishes, and F has no wish to see G. There is a risk that a further assessment with H would be complicated by a different dynamic at play depending on which sibling (F or G) was excluded from the assessment;

(vii) Even if further assessment came to a conclusion that the sibling bond was stronger than originally stated, it is unlikely to lead to a change in the care plan, which is ultimately the responsibility of the local authority to draw up. FASS has already made a clear recommendation that the sibling bond should be protected and encouraged, but it is not for FASS to make any recommendation about the weight that should be given to its recommendations, nor to give a view about the care plan for adoption;

(viii) The existing care plan is drafted on the basis that continuing sibling contact should be facilitated. Even if there were further evidence of a particularly close bond between H and one of his siblings, it is not in my judgment realistic that this might lead to a change in care plan so as to propose placement of H with any of his siblings:

I do not regard the proposal that H might be placed with F as realistic. There is a substantial age gap, F has a high level of need and is benefitting from being the sole child in placement. There is no guarantee that his carer would be matched to take a six year old child as well as F. If she were matched, H would have to move away from his school and current carer to a different region of the country. F plans to be at college next year and is then unlikely to be in placement with H for a significant period of time. Given how well he is doing in placement, it cannot be regarded as a good idea for F to leave his current placement so as to be placed with H;

It is not suggested that H might be placed with either G or E.

The FASS report was particularly directed to consider among other issues the sibling bond. The social worker is clearly alive to the relationships between the siblings. It cannot be said that she has not fully appreciated the nature of the relationship. As well as the FASS assessment, she has independently formed a view that there is a need for the sibling relationship to be protected. She is alive to it, acknowledges its importance, but has come to the conclusion that it does not tip the balance away from adoption. It is for me to carry out my own analysis. I am not satisfied that there is in reality a gap in the evidence such that the Court is unable to consider the welfare checklist factors. I reject the application for an adjournment in order to revisit the FASS assessment. It is not necessary, nor would it be proportionate to delay further for this reason.

Further evidence about the long-term foster carer

The parents have been represented most ably by Miss Wilkins and Mr Firbank who have put forward a number of arguments in favour of long-term foster care. I can see from the parents' perspective that the foster carer's indication that she would be willing to have H throughout his childhood may seem like new information that could provide a neat answer to the case. However, having considered the matter carefully, I do not consider that I should delay these proceedings further in order to obtain more information about the foster carer's position. My reasons are as follows:

(i) I would be concerned about the quality of the evidence that might be taken from the foster carer in circumstances where she may find herself put under significant pressure to 'save the day' by agreeing to have H long-term. I am not doubting the foster carer's sincerity in any way, and don't suggest that any pressure would be put on intentionally, but would be concerned that further information taken from her now when the stakes are so high and there is heightened emotion may not give the same answer that would be given after a period of greater reflection without the same pressures exerted;

(ii) Even if she confirmed that she would be willing to have H, the foster carer's position alone would not provide an answer to the case; the local authority would also need to confirm its assessment of the placement. There would need to be consideration of whether the foster carer was approved as a long-term foster carer, if other children would be authorised to be in the placement, if this foster carer should be matched to H long-term;

(iii) I accept Mr Forbes's submissions about the dangers of the Court crossing the clear line which divides the decision-making process of the Court so far as making a care order is concerned, and the responsibility upon the local authority to implement the care plan. In my judgment, seeking to obtain these further details about the foster placement at this stage would stray too far across that line;

(iv) I approached my analysis on the basis that remaining in long-term foster care was a realistic possibility for H, but I also have to consider the pros and cons of foster care as an option in itself. I do not consider that having further information about the particular circumstances of H's current foster carer would make a difference to my evaluation; I am satisfied that having regard to the realistic possibility of H staying in his current foster placement in the long-term meets the Re B-S requirement to evaluate each option 'to the degree of detail necessary to analyse and weigh its own internal positives and negatives';

(v) Further delay in this case would be detrimental to H's welfare and in all the circumstances, an adjournment for the purpose of obtaining further information from the foster carer is neither proportionate nor necessary to resolve the issues in the case justly.

For these reasons, I refuse the parents' applications for adjournments and I turn now to consider the factors on the Adoption and Children Act checklist, based on the evidence I have read and heard, first having regard to the relationship the child has with relatives including (i) the likelihood of any such relationship continuing and the value to the child of its doing so, and (iii) the wishes and feelings of the child's relatives regarding the child (s1(4)(f)).

There is no question that H is a much-loved child and his relationship to his siblings and parents is important, as acknowledged by the professionals. They are the only family he has ever known. Our relationship with our siblings is usually the one that lasts longest in our lives, and with whom we share very significant experiences. There is much that is still unknown and unexplored about the experiences of these children in the household, and they may be uniquely placed to support one another to understand those experiences in the future.

I accept the opinion of the expert evidence, in particular FASS, about the importance of the sibling relationship, and that both the social worker and the guardian also regard it as important and something that should be protected and encouraged if possible. At the same time, the evidence is clear that these relationships are not without complications and in the same way that the parents were noted to have an idealised view of themselves as parents, it does strike me that the family as a whole has a rather idealised view of H. Each of them describes him as their favourite and in turn predicted that they were his favourite. He was treated as the baby of the family, the older siblings have been described as providing a good deal of his care to him, and they speak of him in an affectionate way, but in fact the contact notes do not suggest that is always the case in practice. E is rarely seen to acknowledge H when he arrives or interact with him much at all in contact and while she finds him sweet, she also finds him to be irritating. F is described as looking forward to seeing H and to enjoy regressing to a certain extent, playing football and jumping in puddles with him, but also after a time to find him a bit annoying - as one might expect given the ten year age gap. H and F have not lived together for the past eight months, and F was not living in the house for the eighteen months up to October 2016. Theirs is not truly a long-established relationship. H's relationship with G is volatile. In the records of child protection conferences there are references to him being the victim of aggressive behaviour inflicted upon him by her and his other siblings.

The picture therefore is in my judgment rather more nuanced, because while there can be no doubt that protecting and encouraging sibling contact is recommended, the weight of the evidence suggests that it may not in reality be wholly straightforward to promote and encourage a positive relationship between these children.

So far as his relationship with his parents is concerned, H has suffered significant neglect at their hands and their ability to meet his physical, educational and emotional needs even in the supported environment of a contact centre, is very limited. They love him very much and of course would wish to have him home and to care for him throughout his childhood, but the reality is that very sadly, they are not in a position to do so, and the prognosis for positive change is poor.

H has often enjoyed contact when there, but has not expressed a strong view or desire to see his brother and sisters or parents since he has been in care, and is reported as having tummy aches and, the day of the group contact organised by FASS, vomited in the car on the way there, his foster carer deciding that it was better to turn back.

Considering (ii) the ability and willingness of the child's relatives or other relevant person to provide the child with a secure environment in which the child can develop otherwise to meet the child's needs, there is little to add to what has already been said in respect of the parents themselves, and although assessments have been carried out of other family members, there is no other relative able to put themselves forward as a carer for H.

I accept that H's present foster carer is 'a person in relation to whom the court considers the relationship to be relevant' within the meaning of section 1(4) of the Adoption and Children Act 2002. H has flourished in her care, made huge progress in all aspects of his development. He is doing well at school, has developed a bond with her and she has enabled him to maintain links with his birth family. However, even assuming that she were approved to be his long-term foster carer and she gave that commitment to H, the placement is necessarily on a very different footing from a placement for adoption, for the reasons to which I have referred in paragraph 86 above.

The range of orders available to the Court (CA1989 s1(3)(g)/ACA2002 s1(6))

Having regard to the evidence and the checklist factors, I am satisfied in all the circumstances that H's welfare requires the protection of a care order, and his continued separation from his parents. The parents have bravely acknowledged this to be the case.

The realistic options for H are long-term foster care or placement for adoption.

H is nearly six and has grown up within his birth family. There is a significant risk that it may take time to find a new family for him, and that he may find it difficult to settle and form secure and loving attachments to new carers. He is likely to miss his parents and siblings, to suffer if their relationship is severed completely, and is at risk of suffering harm, knowing that he was adopted away from his birth family, particularly in circumstances where his siblings will continue to have regular contact with their parents. This could be ameliorated by his having regular contact with his siblings (and potentially his parents), but that is not without its complications. Even so such a separation is likely to affect him throughout his whole life.

However, the evidence from the family finder is in general positive about the prospects of finding him a new family, and if that can be achieved, there is a real chance that H could grow up in a secure and stable home, with all his physical, emotional and educational needs met throughout his whole life. The risk of adoption breakdown even for children of his age is significantly less than the risk of his having multiple moves of foster carer, were he to remain in long-term foster care.

Even were he to be in a foster placement that lasted, whether with his current carer or moved to a different long-term foster placement, H would not have the security of knowing that from the outset that it was intended that he become a permanent member of a new family for his whole life. The nature of placement is different. His carer would be employed to care for him, but only until the end of childhood, and the local authority would be his parent. He would have more opportunities to see his birth parents and siblings than if he were adopted, but the care plan for adoption does at least provide for continued contact with his siblings, and the evidence of the family finder is that this is achievable albeit there may be a delay.

While I accept that if possible the sibling bond must be promoted, protected and encouraged, this is not a case where the evidence leads me to conclude that H's need for sibling contact should be regarded as a 'red line', or a factor of such magnetic or fundamental importance that it should be determinative of the outcome in this case, by tipping the balance in favour of foster care. The circumstances in this case are different from the cases to which I have been referred, in which there was already a strongly established sibling bond, and it was judged to be absolutely fundamental that there must be the continuation of already regularly established contact, whatever the placement. In H's case there is positive evidence about the sibling relationships, but it is not all positive. H's relationship with G, the sibling closest to him in age is the most troubled. His relationship with F is better, but there is a ten-year age gap and it cannot be guaranteed that F will be available for very regular contact with H throughout his minority; F has not been a very enthusiastic participant in contact sessions. E will be eighteen shortly and in particular given issues around her capacity, her commitment to contact cannot be guaranteed. Practical considerations such as the location of the siblings will also apply. In the circumstances, I am not persuaded that there is a particularly good prospect of H deriving benefit from direct sibling contact throughout his childhood. I am not persuaded that there is necessarily going to be better availability of sibling contact in foster care compared to in an adoptive placement.

Adoption lasts for life, but foster care comes to an end, and with it the support of the local authority. There is a risk that at this stage H could reconnect with his family in an unplanned way, which may put him at risk of harm, in particular given the risks identified within the family network, given the current assessment of their abilities to meet his needs and because the prognosis for improvement so poor.

If a placement order is made and either there is a significant delay in finding a match such that the care plan needs to be revisited or he is placed with a family but the adoptive placement is not a success, the consequences for H at his age would be devastating. He is likely to once again be the subject of care proceedings, to live with further uncertainty hanging over him, and his chance of finding stability and security in his life reduced.

By contrast, even if a foster placement comes to an end, H would have the continuity of his social worker, who will know him well and will be well practised in matching and finding him a new carer. Foster carers are trained professionals, they specialise in supporting children through difficult transitions. But, even when a child is placed in long-term foster care, there is statistically a greater chance of his having a number of moves during his childhood, and each time a foster placement comes to an end, he is at risk of having to leave his home, his carers, other children in the house, his school, involvement in clubs or activities he has enjoyed, and to start again. It may not be as great a harm as the breakdown of an adoptive placement, but would cause him to suffer on each occasion and the risk of harm would be compounded if there are a number of placement moves.

Statistically the risk of placement breakdown following adoption is lower compared to the risk of his having a number of moves if placed in long term foster care.

Having regard to all the evidence in the case, the welfare checklist and both H's and his family's article 6 and article 8 rights, after careful consideration and looking at the advantages and disadvantages of each option for H, I have come to the conclusion that H's welfare needs can only be met by his being placed for adoption. While there are some advantages to his remaining in foster care for all his childhood, there are in my judgment some very significant disadvantages which in my judgment would compromise and limit the way in which his physical, emotional and educational needs could be met. Similarly, while inevitably there are some risks in finding and establishing an adoptive placement for him, and the consequences of separation from his birth family are life-changing, on balance, such a placement if found would meet all H's needs throughout his life.

I am satisfied that nothing short of adoption will do to meet H's needs and I will grant the local authority's application for a placement order.

The case of Re S-F to which I have been referred turns on its own particular facts, and I have not found it of particular assistance. In this case there were not the deficiencies of evidence that were identified in Re S-F; there is a detailed permanency report and a full note of the agency decision maker's reasons, there is a full statement from the family finder. The local authority in S-F was criticised for not providing further information about the foster carer, but that was in circumstances where there was no evidence at all before the Court of the child's experience in foster care, and the local authority's contingency plan was for the child to remain in long-term foster care with that particular carer. The facts of this case are very different.

In making my decision I have had regard to the views of the children's guardian, arrived at after a thorough review of the evidence and careful analysis and reflection. Her independent professional assessment resonates with the comprehensive and balanced professional assessments of the social worker and the specialist FASS team; there is a significant weight of professional evidence to support the local authority's case. I have carried out my own evaluation of the evidence and analysis and I am satisfied there are no good reasons to depart from the guardian's recommendations.

For these reasons I am satisfied that H's welfare requires me to dispense with the consent of his parents to the making of a placement order.

Contact

I approve the local authority's care plan which seeks an open adoption, providing for direct contact three times a year between the siblings, but indirect (letterbox only) contact between the parents and H.

The social worker confirmed however that it would be reasonable to at least ask the adoptive parents if they would consider meeting with the parents and facilitating contact, and the family finder confirms in her statement that is standard practice once the family finding team is engaged, and post placement.

I am not persuaded that it would be appropriate to order a section 26 contact order at this stage, for the following reasons:

(i) So far as contact with the parents is concerned, the overwhelming professional evidence is that the parents have struggled to manage H's contact and to make it a beneficial experience for him. While they have not sought to undermine any of the children's foster placements, an adoptive placement is of a different kind, and even if unintentionally, there is a significant risk that continuing contact between H would undermine the security of his placement with a new family. The difficulties he will undoubtedly experience as a result of being separated from them can be mitigated by indirect letter box contact and life story work;

(ii) Having had regard to the evidence, in particular the oral and written evidence of the children's social worker, I am satisfied that this local authority is committed to searching for adoptive parents who will be willing to facilitate sibling contact. It is in the care plan. Following Re C, referred to above, there is in my judgment no need to make an order for sibling contact as well;

(iii) There is a significant risk that a contact order made at this stage of proceedings is likely to impede the search for an adoptive placement; it is one thing as a prospective adopter to be open to the idea of contact in principle, it is another thing to agree to it where you will have no say over the terms, no input into the frequency of contact, how it is going to take place, and to agree to it before you have even met the child you hope to adopt;

(iv) I do not consider it is in H's welfare interests to have the search for adopters significantly restricted by the presence of a contact order when there are so many variables and uncertainties around sibling contact at this stage;

(v) I have had regard to the case of Re P to which I was referred, but in that case, as in Re S-F, it was common ground and the Court had made specific findings that the children had a need for continuing contact. In this case, I have acknowledged the importance of contact, but I do not regard the expert evidence as amounting to an assertion that it is an essential need in the same way. Having listened carefully to the evidence of the social worker and the guardian, and had regard to the minutes of agency decision makers reasons, I am clear that so far as H is concerned, his need for continuing sibling contact, while an important part of the care plan is not so fundamental that it should be the driver for implementation of the care plan;

(vi) It would be virtually impossible to draft a contact order with any more specificity than a general commitment to sibling contact, which goes no further than the care plan already in place. It is unknown where E's placement is going to be, nor G's, F is likely to stay where he is for the next eighteen months or so, but not necessarily thereafter. H's location obviously is not known. The other children's wishes and feelings around contact would have to be taken into account as well as the views of their carers before any order could be made. For reasons given above, while the aim of promoting and encouraging sibling contact is clear, the way in which this will be implemented is not so straightforward;

(vii) I remind myself that this is not the last chance for the parents to apply for a contact order. If H is placed for adoption and an application is made to the Court for an adoption order, the Court has a duty to consider contact, and there will be evidence before the Court specifically directed to that question. The parents may apply to the Court for a contact order at that stage, but even without a formal application, the Court's duty is set out at section 46(6) of the Adoption and Children Act 2002:

'Before making an adoption order the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any view of the parties to the proceedings.'

I do not accept the submission made on behalf of the parents that in failing to bring to the Court's attention the foster carer's willingness to have H long-term, the local authority has shown itself to be close-minded to the potential benefits to H of long-term foster care. For reasons given I was satisfied that the social worker has carried out a full analysis and weighed up the pros and cons of each realistic option for H. I therefore reject the parents' application for a contact order.

Conclusions

For the reasons that I have given in this judgment, I will:

• Make care orders in respect of F, G and H;

• Dispense with the consent of H's parents to the making of a placement order;

• Make a placement order authorising the local authority to search for adoptive parents for H.

I approve the care plans in respect of each of the children. I approve the care plan in respect of H for an open adoption to the extent that the search should be for adopters willing to facilitate sibling contact. However, I do not consider that at this stage orders should be made in respect of sibling (or parental) contact pursuant to section 26 of the Adoption and Children Act 2002.

I will discuss further orders to progress E's case when this judgment is handed down.

I know that making such orders will cause very great sorrow and distress to H's parents and siblings and I am sorry for the pain that this decision will cause them. I know that H is dearly loved by all his family and that he loves them very much in return. However, I have to consider his welfare throughout his life and it is my assessment that his needs throughout the rest of his childhood and his whole life, can only be met by my making these orders.

Joanna Vincent

1^st May 2018

HHJ Vincent

Family Court, Oxford

ANNEX 1: Agreed threshold document

Sexual Harm

The parents have not been able to manage appropriate sexual boundaries in the household. As a result the children have demonstrated sexualised behaviours and language towards one another, which the parents have not been able to adequately manage or prevent.

The parents have not been able to identify risky adults or prevent the children from being exposed to them.

Neglect

The parents have not been able to keep on top of the home conditions that the children were living in.

The parents have not consistently promoted the children's personal hygiene to a good enough standard.

The parents were not able to manage consistent routines for all of the children.

Emotional Needs

The parents have not been able to manage G's behaviours and emotional needs, which has contributed to her presenting with disturbed behaviours. The parents' difficulty with this has impacted on their ability to meet the emotional needs of all of the children.

ANNEX 2

Summary of decision and reasons

This summary is to help the family understand the judge's decision. It is not meant to add anything to the longer judgment.

AB and CD

AB and CD love all four of their children very much.

They have tried hard to be good parents.

They agreed to the children going to foster care because they wanted them to be safe and well looked after.

They have done well to make positive changes at home.

They have come to all the contacts and meetings they were asked to. They have worked with the social work team, FASS and the guardian.

They would love to have the children back home, but there is still a lot that they need to do to become better parents.

Although they have tried hard to make changes, it is not safe for any of the children to go back home.

Even though their children are not going to live with them, AB and CD will always love all their children and want the best for them.

E is 17. She is too old for the Court to make a care order.

AB and CD agree that for now the best place for her to be is with her foster carers.

E needs to know where she is going to live when she turns 18.

The local authority will tell the parents and the Court its plans for E very soon.

The judge will then see what orders can be made to help E.

The court will make a care order for F.

He will stay with the foster carer he is living with now.

He can have contact with his family if he would like it.

The court will make a care order for G.

She will stay with her foster carer for now but she may have to move to a new foster carer and to a new school.

The local authority will try to find the best home and school for her.

G can have contact with her family if she would like it.

The court will make a care order for H.

The court will also make a placement order for H. A placement order allows the local authority to find a family who wants to adopt H.

The judge's reasons for deciding H should be adopted

H's mum and dad have tried hard to make changes but they cannot look after H. It is not safe for H to go back home.

The choice for H is between adoption or foster care.

The good things about foster care are that H could live in a new family and be looked after, and he could also carry on seeing his birth family. Lots of foster carers are great, and foster care is a good choice especially for older children like E, F and G.

H's foster carer said she would have him for all his childhood. She is a good foster carer and H is doing well with her. She could look after H until he is a grown-up.

The bad things about foster care for H are:

- H is not yet six. It might be harder for him than E, F and G to be in foster care for all his childhood because he has got more time than them to be in foster care;

- The foster carer would look after him but he would have to have a social worker as well. He would probably have lots of different social workers;

- H might have to change foster carers. That might also mean he has to change school, move house, and leave friends behind. Every time he changes foster carer he will suffer;

- Foster care only lasts for your childhood, adoption lasts for life.

Even though it will be very hard for H and for his birth family, the judge has made the very difficult decision that adoption is a better option for H than foster care. The judge thinks adoption is the only option that will meet all H's needs.

- If it is not possible to grow up in his own family, if H is adopted he has the chance to live with a family who will love him and care for him for all of his life.

- It is important that H gets to see his brother and sisters, but the local authority plan is for him to do that even if he is adopted;

- Usually being in foster care means you have more chances to see your birth family. F and E are much older than H and they won't be in foster care for too much longer. H might not be able to have as much contact with them as he wanted, especially once they are grown up and have left foster care. H doesn't always get on well with G. So being in foster care doesn't mean H would definitely see his brother and sisters more than if he was adopted.

Contact

AB and CD will have contact with F six times a year and with G six times a year. E can join in with these contacts if she would like to.

Until H is placed with the adopters he will stay in foster care and he can carry on having contact with his family.

The local authority has agreed to ask the adopters if they might let H have direct contact with his mum and dad in the future, but at the moment the plan is that he does not have direct contact with them. They will be able to have 'letterbox' contact, usually once a year.

Some families who adopt children are happy for them to see their brothers and sisters from their birth families. The local authority is going to try and find a family like that. That would mean that even though he would be living with a new family, H could still see E, F and G.

The judge wants H to have contact with E, F and G, but the judge has not made an order for contact. These are the reasons:

Arrangements for contact with H, E, F and G would be complicated to work out at the moment, so the order would not be very clear;

- The judge trusts the local authority to make its plan for the children to have contact with each other work, so the order is not needed;

- A contact order might put off any adopters, and that would not be fair on H.

The parents can ask the Court again to make a contact order when the adoptive parents apply to Court for an adoption order.

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> H (care and placement application), Re [2018] EWFC B36 (20 April 2018) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2018/B36.html Cite as: [2018] EWFC B36