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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> T and R, Re (Refusal of Placement Order) [2021] EWCA Civ 71 (28 January 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/71.html Cite as: [2021] EWCA Civ 71 |
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ON APPEAL FROM THE FAMILY COURT AT NORWICH
HH Judge Richards
NR18C01086
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF T AND R (REFUSAL OF PLACEMENT ORDER)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BAKER
and
LORD JUSTICE MALES
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A LOCAL AUTHORITY (1) T AND R (by their children's guardian) (2) and (3) |
Appellants |
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- and - |
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RS (1) TL (2) |
Respondents |
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Nicholas Goodwin QC and Kitty Geddes (instructed by Spire Solicitors LLP) for the Second Appellant
Janet Bazley QC and Alison Moore (instructed by Chamberlins and Norton Peskett) for the Respondents
Hearing date : 9 December 2020
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Crown Copyright ©
LORD JUSTICE BAKER :
Background
The judgment
"55. Dr Hunnisett also told me that it would be an 'unreasonable loss for the children' if the ultimate orders for placement did not, in her words, 'make sure that the children maintain contact over the course of their minority'. Similarly, she told me that, if there was a placement order and the children were placed with adopters, those adopters would have to understand the importance of the family relationships and the children's culture. In fact she went so far as to say that if they could not do so then they would 'not be the right carers for the children'. Dr Hunnisett said to me without hesitation this: 'if you did not make sure of this then you would be risking damaging the whole psychological development of this whole sibling group. It is extremely important that contact is maintained.'
56. In respect of T and R, she told me that if they were to move they would have to form new attachments. She said the contact would be, as she put it, 'were it not to happen, an unnecessary loss and potentially harmful to all of them to lose those sibling contacts and relationships.' In her evidence Dr Hunnisett told me, as she put it, 'central to any decision for the psychological development of the children is to ensure contact throughout their childhood: I think it is essential'…."
"the need for permanence was the ultimate goal and it came above the need to maintain the children's culture and heritage and with that, inevitably, the risk of contact never taking place were there to be an adoption."
"She did say to me … that she had promoted all the 'usual reasons', as she described it, for adoption, and she did say to me 'my support for adoption is the age of the children', echoing what Dr. Hunnisett said. She told me that every case was individual and that in this case the issue of contact was an absolute necessity and if it could not be achieved then she said in principle adoption would be the wrong plan. That part of her evidence perhaps demonstrates how the guardian has tussled with what she described as 'finely balanced'. However, [she] ultimately felt that the security offered by adoption came before all else and, although finely balanced, her opinion was that adoption would give the best prospect of a settled childhood for T and R to grow up together."
"100. …[T]here is no doubt that the elder children have, as the guardian says, a real lived experience of this culture and that they understand it as their heritage. I can see how the guardian feels the younger two are less influenced by this culture given their ages on reception into foster care and their experiences since. However, it is wholly apparent from contact that this is not something that is strange or alien to T and R. In my view, they have a strong and real sense of belonging to this family …. They are a real and rooted part of the group is what the overall evidence demonstrates and they share all that it entails.
101 … I am less confident that the children are not a homogeneous group despite the experience since the separation of the younger two. It is interesting how throughout the evidence culturally young T is treated by his sisters as 'the boy of the family' and with all that it entails in this culture, perhaps more than in contemporary mainstream society for boys."
"an additional singular advantage is that it would keep alive, reinforce and foster the background from which these children come and which they understand".
On the other hand, he observed (at paragraph 108) that:
"The disadvantages of such a type of placement are well known. The principal disadvantage is that it is of a different character to being returned home and, indeed, being adopted. Whilst it can properly be described as permanent, there is always a risk that it can change. That risk is in my view incalculable and uncertain …."
"110. … the advantages are well known and 'usual', as the guardian described them. Such a placement offers the prospect of selected carers committed to meeting the needs of the children and with a life-long commitment to security and emotional stability. It is a regime that gives a child an opportunity to establish an enduring relationship with primary caregivers and gives to a child that sense of permanence in what is described as a 'forever family'. Additionally, these are young children who run those risks that I identified in respect of foster care for the entirety of their life of being a looked after child, and I acknowledge the ages of the children, and a placement selected to meet their needs and security, are powerful reasons to make an order to ensure that that is what is achieved.
111. The disadvantages, however, are now perhaps clearer to see at this stage of the case. Adoption would inevitably mean that contact could not be secured with anything like certainty. Contact for the children T and R with their older sisters would be curtailed in any event under the plan of the local authority to 3 or 4 times a year. Contact with their birth parents, though, would stop. The relationship would be severed in law and fact. The relationship, apart from the usual aspects of natural love and affection, comes with the only real hope that these children have of knowing or understanding their background, where they come from, and, through their culture and heritage, what I would describe as their place in the world.
112. Contact is considered essential between the siblings by all the professionals and the experts in this case. It is of genetic and cultural importance to them. It has been described as an absolute necessity and so important that prospective adopters who would not contemplate it should be disregarded and that the psychological wellbeing of the whole group would be damaged if not maintained. The disadvantage of adoption is that there is no effective mechanism for it to be maintained other than, in reality, by the agreement and good will of the adopters, upon whom everybody would have to rely in terms of keeping their word. The court would be unlikely to foist an unwanted contact order upon adopters in respect of sibling contact, and certainly not in respect of parental contact.
113. The importance of that contact between the children was emphasised by all professionals. For the children, as I was reminded, it would be the longest relationships they have – and relationships as part of a family of six traveller children. In respect of the parents, the reality is that severing of the relationship would be complete because their views of adoption would not permit such a course …."
"126. …. I have thought carefully about the making of a placement order given all the advantages that I have outlined that come with adoption. I have also considered the disadvantages and that welfare checklist in respect of adoption. Ceasing to be a member of their birth family by way of adoption severs all legal ties with their parents and their siblings and, with it, the risk of a damaging impact on the child's sense of identity and emotional wellbeing.
127. The interference with family life could not be greater. The balancing of family life with an adoptive family is not as clear cut in this case because of the necessity for contact to continue and the inability to have any enduring assurance that it will. Adoption, even with sibling contact would be likely approving a plan to deprive the younger two of their heritage.
128. I have considered the value of the relationships the children have with their parents and siblings and its value in terms of an understanding of being part of a sibling group and, for T, the only boy of that group and its meaning in the travelling culture and its more traditional approach to gender roles. For these two children to retain their culture, it would be a difficult task for any adopter wishing to claim the children as their own in circumstances where the very culture the children would be exposed to in contact would be one in which adoption is anathema. I have, as I have said, also borne in mind the strength as well as the value of the relationships. Even R knows and understands that she is part of that bigger family of which T, with whom she lives, is also a part. It seems to me that there are strong relationships in this family and that they should be described in the same way as having significant value.
129. In those circumstances I have come to the view that in this case, and on these facts, the advantages of adoption are outweighed by the real disadvantages in the risk pertaining to contact that I described and the consequences of it. I am not satisfied that the strict test for severing the relationship between children and their parents and their siblings is satisfied, and I am not able to find any reassurance that a factual continuing of the sibling relationship can be assured to anywhere near the level of certainty that has been described to me and which in my judgment is needed to reflect its importance to these children genetically and culturally. Additionally, in my view, there is a real need to ensure that the culture and heritage of the two children is not lost by being placed away from it. It is of real value to them and it is where they come from. The risks of that being diluted to nothing or being ignored are not fanciful in my view. They are real risks. That aspect of their development can only be maintained by contact with their parents, which in my judgment simply would not happen in an adoptive placement as opposed to a foster placement.
130. Additionally, in my view there is a residue of concern in my mind that the approach to the placement of the children by way of adoption has been driven by a combination of their age and that they are adoptable. For my part, it has overlooked – to some considerable degree – the loss which I have identified and which would come with such a course and an acceptance of the powerful 'usual practice' without a true counterbalance of what are also powerful factors in this case against the making of a placement order leading to adoption. It is not right in my judgement for these two young children. There is no such thing as the 'normal order' because of age and apparent 'adoptability'.
131. In those circumstances, and for those reasons, I am not prepared to approve the current plan for T and R. Accordingly, I refuse to make placement orders in respect of T and R in this case.
132. In coming to that decision, I am conscious that I am departing from the recommendation of their experienced children's guardian, for whom the court has considerable respect. I make it clear that I do so in circumstances where I find that the decision is not as finely balanced as the guardian felt it was. I have had the considerable advantage of being able to hear detailed evidence and cross-examination about the powerful arguments on each side and particularly in respect of a placement order. For my part, with those advantages, having heard from Dr Hunnisett and the independent social worker about the crucial value of contact, which was recognised by the guardian and emphasised by her, that, coupled with my assessment of the importance of retaining links for the younger children with their culture and heritage which I am persuaded to give more weight to than the guardian, leads me to a different conclusion. It is less finely balanced for me because of the unique privilege I had of hearing the evidence given and tested.
134. I accept that it can be said that there is no right answer, but in my view, when measured against the yardstick of proportionality, which is what the welfare checklist requires, and reminding myself of the strict test that nothing else will do, in my judgment it makes that decision less finely balanced for me; one where plainly adoption is not in the children's best interests as a placement of last resort. It is not necessary in this case. For those reasons, I depart from the recommendations of the guardian."
A preliminary issue
The submissions to this Court
"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."
It was submitted on behalf of the parents that this was a case in which it could not be said that nothing but adoption would suffice to meet the children's needs. Ms Bazley and Ms Moore also cited comments by the Justices in the Supreme Court in Re B which emphasised the caution to be applied by an appellate court when considering an appeal against a decision about the future of a child, in particular the observation of Lord Wilson at paragraph 42:
"The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact."
Discussion and conclusion
"Whilst it can properly be described as permanent, there is always a risk that it can change. That risk is in my view incalculable and uncertain."
Neither Mr Bagchi nor Mr Goodwin persuaded me that this is a case where the judge's reasoning was deficient because he overlooked a significant factor to be taken into account.
"The disadvantage of adoption is that there is no effective mechanism for it to be maintained other than, in reality, by the agreement and good will of the adopters, upon whom everybody would have to rely in terms of keeping their word. The court would be unlikely to foist an unwanted contact order upon adopters in respect of sibling contact, and certainly not in respect of parental contact."
"52. The starting point for any consideration of this issue must be the settled position in law [sc. which] had been reached by the decision in Re R, which was confirmed by this court in the Oxfordshire case and in Re T ….
53. As stated by Wall LJ in Re R, prior to the introduction of ACA 2002, s 51A, the position in law was, therefore, that 'the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.'
54. Although s 51A has introduced a bespoke statutory regime for the regulation of post-adoption contact following placement for adoption by an adoption agency, there is nothing to be found in the wording of s 51A or of s 51B which indicates any variation in the approach to be taken to the imposition of an order for contact upon adopters who are unwilling to accept it …."
At paragraph 59, the President added:
"The law remains, as I have stated it, namely that it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree."
"that aspect of their development can only be maintained by contact with their parents, which in my judgment simply would not happen in an adoptive placement as opposed to a foster placement"
was arrived at after a thorough analysis of the evidence.
LORD JUSTICE MALES :
LORD JUSTICE FLOYD :