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England and Wales Family Court Decisions (other Judges) |
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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> A, B, C, D and E (Children : Care Plans) [2017] EWFC B56 (24 August 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B56.html Cite as: [2017] EWFC B56 |
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IN THE FAMILY COURT SITTING AT DERBY
CASE No. DE16CO0355
(judgment handed down on 24 August 2017)
Before His Honour Judge Bellamy
Re A, B, C, D and E (Children: Care Plans)
Gordon Semple, counsel for the local authority
Dee Khunkhuna, solicitor for the mother
Anthony Finch, counsel for the father
James Cleary, counsel for the grandmother
Christopher Sedgwick, solicitor for the children
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
JUDGE BELLAMY
1. In December 2016 Derbyshire County Council ('the local authority') applied to the court for care orders in respect of four children, Child A, now aged 10, Child B, now aged 4, Child C, now aged almost 3 and Child D, now aged 2. A fifth child, Child E, was born in March 2017. He is now aged five months. Care proceedings in respect of Child E were commenced at birth and were consolidated with the earlier proceedings.
2. The mother of all five children is MK ('the mother'). TN is the father of Child A. He does not have parental responsibility for Child A. He is not a party and has played no part in these proceedings. His whereabouts are unknown. The father of the younger four children is FZ ('the father'). The mother is white British. TN and FZ are both Asian (Pakistani)/British.
3. Also a party to these proceedings is GK. GK is the children's maternal grandmother.
Background
4. The parents have a long-standing history of drug abuse including crack cocaine and cannabis. The drug abuse has compromised their ability to provide appropriate care for the children. This, in turn, has led to the older children suffering from developmental delay. The parents concede that the threshold set by s.31(2) of the Children Act 1989 is met. I am satisfied that it is.
5. On 15 th September 2016 the family home was raided by the police. The parents were both found to be in possession of drugs. It is reported that they were in the process of preparing to smoke a 'crack pipe'. Their then four children were present in the home. The parents were arrested.
6. It was subsequently agreed that the children should be cared for by their maternal grandmother. To enable her to care for them she moved into the children's home and the parents moved out. The parents were not allowed to have unsupervised contact with the children. They were only allowed to be in the home between 7.00am and 7.00pm to support the grandmother in caring for the children. These arrangements were intended to be a temporary measure. They were supported by a written agreement.
7. The local authority undertook two viability assessments of the grandmother. Both were negative.
8. These proceedings were issued on 12 th December. The local authority sought interim care orders with a view to the children being removed from the care of their grandmother and placed in foster care. The application was listed for hearing on 22 nd December. In the event, on the day of the hearing it became clear that the parents had removed the children from the grandmother's care. Their whereabouts were not known. The police were informed. Orders were sought in the High Court. There was concern about the role of the grandmother in the abduction of the children. It was believed that she may have colluded with the parents.
9. On 27 th December the parents and the children were found staying in a hotel in Derby. The matter was returned to court. Interim care orders were granted. The children were placed in local authority foster care. Initially Child A was placed on his own and his then three younger siblings in a separate placement. Within two or three days Child A moved into the same placement as his siblings. Those four children continue to be in that placement.
10. At the time these proceedings commenced the mother was pregnant with her fifth child. Child E was removed from his mother's care at birth. The local authority began care proceedings. It applied for and obtained an interim care order. When he was ready to be discharged from hospital, Child E was placed in foster care. He is not in the same placement as his older siblings. He has never been cared for by his birth parents or by his maternal grandmother. He has never lived with any of his siblings.
11. Notwithstanding the negative viability assessments, the grandmother continued to put herself forward as a long-term carer for the four older children. In March 2017 she applied to the court for permission to instruct an independent social worker ('the ISW'). Permission was granted. The ISW reported on 28 th April. Written questions were put to him. These were answered in an addendum report dated 23 rd June. Though the ISW identified some positives his overall assessment of the grandmother was negative. The grandmother accepted that in the light of that assessment there was no realistic prospect of any of the children being placed in her care.
12. The parents accepted that they were not able to care for any of the children. On 26 th May I made a ruling (commonly referred to as a North Yorkshire ruling following the decision of Black J (as she then was) in North Yorkshire County Council v B [2008] 1 FLR 1645) that the parents be ruled out as carers for any of the children.
13. The local authority's application was listed for final hearing on 14 th and 15 th August. The s.31(2) threshold having been conceded and there being no kinship placements available for any of the children it was accepted that the only realistic orders that could be made were care orders for all five children. The area of dispute has related to the local authority's care plans. The essence of the care plans can be stated shortly. The local authority proposes that Child A should be placed in long-term foster care and that the younger four children should be placed for adoption.
The care plans
Child A
14. Child A is a boy now aged 10 years and 11 months. It is proposed that he be placed in long-term foster care. Child A wishes to maintain contact with his mother and grandmother. It is proposed that he should have ongoing direct contact with them eight times a year. Because Child A is to have ongoing direct contact with his mother and grandmother the local authority considers that direct post adoption contact with his half-siblings is not appropriate. The local authority's concern is that Child A's ongoing relationship with his mother and grandmother would give rise to the risk of compromising the confidentiality of the adoptive placements and of destabilising the placements. It is therefore proposed that contact with his siblings should be limited to annual indirect letterbox contact.
15. Child A has been in his present foster placement for eight months. He is settled, happy and thriving. He has made it clear that he would like to remain in this placement. The placement is an agency placement. There are three key issues that will determine whether Child A can remain in his present placement: first, whether his foster carers are willing to offer him a long-term home; second, whether the local authority considers that this is a suitable long-term placement; and, third, whether the local authority is prepared to accept the financial commitment involved in funding this agency foster placement on a long-term basis. I shall return to those issues later in this judgment.
Child B
16. Child B is a boy who is now aged 4 years and 3 months. He has lived with his older brother, Child A, all his life. They enjoy a close relationship. In light of his age the local authority considers that long-term foster care for Child B is inappropriate and that permanency by way of adoption is the better welfare outcome. It is proposed that, if possible, he should be placed with his younger brother Child C and his sister Child D. The search for a joint placement for these three siblings should be time limited to three months. If a placement cannot be found within that time then it is proposed that Child B should be placed with Child C only.
17. It is proposed that Child B should have annual indirect letterbox contact with his mother, grandmother and Child A and that he should have direct contact with his youngest brother, Child E and also, if he is not placed with her, with Child D.
18. Child B suffered developmental delay whilst in the care of his birth family. He is well-cared for and thriving in his foster placement.
Child C
19. Child C is a boy who is now aged 2 years and 11 months. He has lived with his older brothers Child A and Child B all his life. Child C has a good relationship with his older brothers and his sister. The local authority considers that adoption is the appropriate outcome. If possible, he should be placed with his older brother Child B and his younger sister, Child D. In the event that such a placement cannot be found within three months it is proposed that he and Child B should be placed together. It is proposed that he should have annual indirect letterbox contact with his mother, grandmother and Child A and that he should have direct contact with his youngest brother Child E and also (if he is not placed with her) with Child D.
20. Child C suffered developmental delay whilst in the care of his birth family. He is settled and thriving in his foster placement.
Child D
21. Child D is a girl who is now aged 2 years and 1 month. She has lived with her older brothers Child A, Child B and Child C all her life. She has a good relationship with them. The local authority considers adoption to be the appropriate outcome for Child D. If possible, she should be placed for adoption with Child B and Child C. If a time limited search for a placement for all three children is unsuccessful then it is proposed that she be placed with her younger brother, Child E. She has never lived with Child E before. It is proposed that she should have annual indirect letterbox contact with her mother, grandmother and Child A and direct contact with Child E (if not placed with him) and with Child B and Child C (if not placed with them).
22. Child D has suffered developmental delay as a result of the care provided by her birth family. She is settled and thriving in her foster placement.
Child E
23. Child E is a boy aged 5 months. He was removed from his mother's care at birth. All of his short life has been spent in foster care. He has never shared a home with any of his four older siblings, though he has contact with them regularly. Placement for adoption is considered to be the appropriate welfare outcome for him. The local authority proposes to look for a placement that could accommodate Child D if a joint placement cannot be found for her with Child B and Child C. It is proposed that once adopted he should have direct contact with Child B and Child C and (unless she is placed with him) with Child D. He has never lived with his mother, grandmother or older brother, Child A. It is proposed that he should have indirect contact with each of them.
Family finding
24. JG is a Family Finding Social Worker. Based on her experience she is able to offer an informed opinion on the realism of the local authority's care plans for the younger four children. The main challenges facing the adoption team in searching for placements are the size of the sibling group, the importance of maintaining inter-sibling contact if all four children are not placed together and the fact that these children are of dual heritage.
Placement configuration
25. The ideal would be to find a placement in which the four oldest children could remain together. Nationally, there is a lack of approved adopters seeking placement of four children. Many adopters are first-time parents. Meeting the needs of a sibling group of four children would, in JG's opinion, be 'an enormous challenge'. The reality is that a search for such a placement would be unrealistic. This is not, therefore, an option which the local authority pursues.
26. The local authority's preferred option is that Child B, Child C and Child D be placed together and Child E be placed on his own. JG's opinion on this option is that,
'This is undoubtedly also challenging, however, there is evidence that the impact of separating Child B, Child C and Child D could be detrimental and so I would support the plan to undertake a time limited search.'
A preliminary search has revealed that, nationally, there is one family that could be a potential match for these three children.
27. A search for a placement for three children should be time-limited. The local authority proposes a time-limited search for three months. In JG's opinion six months would be more realistic. She acknowledges that that could cause delay in placing Child E if placing him has to await the outcome of the search for a placement for the older three children.
28. If a time-limited search for a placement for the older three children does not yield results, the local authority's fall-back position is to seek a placement for Child B and Child C together and a placement for Child D and Child E together. So far as this option is concerned, JG's opinion is that,
'This would...be more achievable and result in better long term outcomes due to the level of attention being afforded the children. However, this must be balanced with the findings of the social worker's sibling assessment and consider the detrimental impact of separating Child D from her brothers.'
29. The search for two placements that would each take two children could be undertaken in parallel with the search for placements for three children together and for Child E on his own. If a placement for three children together could not be found within six months then it would be appropriate to continue the search for two two-children placements for a further three months.
30. Although JG is optimistic about the prospects of being able to find two two-children placements there is a risk that that may not be possible. If that were to be the outcome the question then arises as to whether the local authority would be willing to contemplate looking for four separate placements for Child B, Child C, Child D and Child E. It is clear that neither JG nor the allocated social worker, has contemplated that scenario. JG said four separate placements would only be appropriate if such an outcome was 'child led'.
31. If there is a time limited search for a placement for the three siblings together, that raises a question about what happens to Child E whilst that search is taking place. The social work evidence is that the search for a placement for Child E would try to identify a placement that would be willing to accept Child D into the placement if it were not possible to find a placement for the older three children together. JG has no experience of undertaking family finding on this basis. Whilst it is not unusual for a younger sibling to be placed with an older sibling who is already established in an adoptive placement, there is 'no case precedent' for placing an older child into a younger sibling's settled adoptive placement.
Post adoption inter-sibling contact
32. I noted earlier that the local authority's final care plans propose that once the younger four siblings are placed for adoption Child A's contact with them should be limited to annual indirect letterbox contact. So far as the younger four children are concerned, no matter what the ultimate configuration of their adoptive placements may be, it is proposed that there should be direct post adoption contact between those four children.
33. JG supports ongoing direct contact between those children who are placed for adoption. However, she would prefer that to be something that grows organically out of a willingness of the adopters to promote such contact rather than for it to be regulated by an order of the court. JG told the court that contact is 'better when it is left to grow'. An order for contact 'could start off on the wrong foot'.
Cultural heritage.
34. The children's dual heritage is an important factor which plainly must be taken into account in family finding. Although it may not be possible to find an ethnic match the local authority is alive to the importance of finding placements in which the children's cultural heritage will be acknowledged, respected and promoted. The need to factor in the children's dual-heritage in the matching process is a given.
Sibling assessment
35. In care cases involving sibling groups it is common for the local authority to undertake what is often referred to as a 'together or apart' assessment. In this case the children's social worker, HE, has undertaken what she describes as a 'sibling assessment'. This is not a 'together or apart' assessment. Although it considers the relationship between the younger four children to a limited extent it does not attempt to assess or evaluate the consequences of separation for each child.
Child A
36. The assessment notes that Child A has a positive relationship with his siblings. Before coming into care there were concerns that he had taken on some aspects of the adult parenting role with respect to his younger siblings. The assessment records that,
'5. Child A has been struggling emotionally due to the direct work and discussions held with him regarding his situation within these proceedings. This has manifested in Child A's behaviour being difficult at times and he has been caught stealing from his peers at school. Child A had stated that he also did this when he lived at home. Child A has also recently found out that his parents take drugs, and is blaming of his step father...for this which has caused a breakdown in their relationship. Child A is also witnessing some negative behaviours from his mother towards his step father during contact. This has occurred as it has been established that FZ has had a baby with Mother's sister. This baby was born within two weeks of Child E.'
Child A has not yet been informed that this baby has been fathered by FZ.
Child B
37. Prior to his reception into care Child B was observed to be the dominant child. The assessment notes that the Health Visitor has described him as a 'bully'. The assessment goes on to record that,
'9. Foster carers have reported that Child B is dominant in his play and does push to get what he wants, snatching off his siblings however they can easily resolve this and report no escalation of behaviours from Child B, nor does his nursery setting. This is positive and shows that Child B is developing the social skills to share and move forward and developing the empathy to say sorry, when in a nurturing and caring environment.'
No concerns are identified in respect of Child B's emotional presentation.
Child C
38. The assessment reports that,
'15. Child C's nursery setting have reported that Child C engages with adults and peers well and his communication skills are developing. He is regarded to be happy in his play with an independent personality. He enjoys story time and song time and enjoys and thrives on being praised. He shows a 'can do' attitude and whilst he remains below average academically, he is catching up and bridging the gap.'
No concerns are identified in respect of Child C's emotional presentation.
Child D
39. The assessment reports that since coming into the care of the local authority, Child D
'16. ...has developed positively in many ways. Her speech and language has developed showing and expressing a level of communication verbally. Child D is described by her foster carers as a lovely girl, she presents no behavioural issues towards her siblings. Foster carers have reported that Child D can also position herself in the sibling group and over time has learnt to stand up for herself when this is required.'
No concerns are identified in respect of Child D's emotional presentation.
Child E
40. Child E is only five months old. Little can be said about him from an assessment perspective. However, the social worker is able to comment on his older siblings' interaction with him. She says that,
'18. Foster carers have stated that none of the children speak of Child E or their parents whilst in their care unless directed to. Within contact, there have only been observations made of Child B spontaneously offering Child E a kiss to the head on minimal occasions. The children do not ask to hold Child E and have not been observed to talk to Child E or offer him affection of their own accord.'
Analysis
41. The sibling assessment contains a lengthy section headed 'analysis'. The most striking aspect of this section of the assessment is that it does not contain a single reference to Child A. The analysis is focussed exclusively on the younger four siblings. It is clear that the purpose of the assessment is to consider the configuration of adoptive placements for the four younger children. The assessment does not consider the impact on Child A of separating him from Child B, Child C and Child D or the impact on any of them of separating them from Child A. Similarly, having explored the possibility of placing the youngest four children in two two-children placements, the analysis does not consider the impact on Child D of separating her from Child B and Child C or the impact on them of separating them from her.
Recommendations
42. Notwithstanding the lack of any reference to Child A in the analysis section of the assessment, he is referred to in the final section of the assessment headed 'Recommendations'. The references relate to Child A's bond with his 'birth family'. It is clear that that expression refers to the adults in his life (the mother, FZ and the grandmother) and not to his relationship with his siblings.
Assessment of the impact of sibling separation
43. On 9 th May the social worker prepared a statement that was described as her 'final statement'. It is clear that this statement was filed in support of the final care plans for the children which were signed on 8 th May. Section 7 of this statement is headed 'The proposed S31A care plan - the 'realistic options' analysis'. If this is intended to be the kind of analysis required in the light of the guidance given by the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 (see §§74-76 below) then in my judgment it falls short. It explains why the mother and grandmother are ruled out as long-term carers for the children. It could be said that that contains an unspoken conclusion that care orders are the only realistic orders for each of these five children. However, Re B-S (Children) requires more. In particular it requires a global, holistic evaluation of the placement options and a reasoned justification for the placements ultimately proposed. That evaluation is missing.
44. That gap is not made good in a subsequent updating statement filed on 26 th July. That statement was filed in support of amended care plans of the same date. In this statement the social worker notes that the parents do not contest the making of final care orders but that they do contest the making of placement orders and wish for the children to remain in long-term foster care. So far as concerns the proposal for long-term foster care, the social worker says that,
'The care planning for the children has been difficult, and taken much consideration with advice and guidance sought from various professionals to include the Independent Reviewing Officer, Adoption Workers, family finders, the children's guardian, managers and colleagues. I have considered all the evidence before the court in this decision making and given great consideration to give balance to all the different options in care planning for all the children balanced with an option of parents' wishes for the children to remain within Local Authority foster care and remain having contact with their birth parents. Despite considering all of the options the priority for all the children has to be stability and their opportunity for permanency. The children require an opportunity to develop a positive sense of self and self-worth, free from worrying and trauma. This cannot be achieved through the children remaining in long-term foster care...'
There then follows a list of 'multiple factors of risk to be considered should the children remain in long term foster care'. No consideration is given to the question of whether there may be any positive benefits from placement in long-term foster care. There is no discussion of the impact of the local authority's final care plans on the emotional welfare of any of these children. Once again there is no mention of Child A.
45. In a second 'updating statement' filed on the second day of this hearing, the social worker attempts to make good some of the gaps in her earlier evidence. She sets out a detailed account of the work she has undertaken with Child A and of the steps she has taken to share her ultimate recommendations with him. She then goes on to address the issue of the impact of implementation of the care plans. This is confined to the impact which implementation may have on Child A. It does not consider the impact implementation may have on Child B, Child C and Child D. The social worker says,
'9. I accept that Child A is only ten years old at this time and this is undoubtedly a discussion and decision beyond his comprehension for someone of his years, or any age. However, his care planning and that of the other children has been made with his wishes and feelings being considered.
10. I believe that the impact of loss and separation upon Child Al should the family court consent to the making of the Placement orders as per current recommended final care plans; is not to be minimised or forgotten. In coming to my recommendation I have acknowledged that this could impact upon Child A's psychological and physical development. Child A is, and has been, part of a sibling unit for four years and as my previous evidence suggests, he appears to have taken on some parenting role.
11. The local authority has already sought to put plans in place to minimise the impact of separation upon Child A. Although the effects of loss and separation will vary from child to child, the negative impact this has can be minimised if the child can live in an environment that is supportive to the grieving process and able to offer an explanation and understanding of life events. The local authority plan is to placement match for Child A and offer him a long term home with carers that will support his need for therapeutic services, stability and emotional warmth.
12. Child A is currently having play therapy weekly which will continue as long as is required. A referral will also be made to Horizons therapeutic service for Looked After Children. In addition direct work will continue by the allocated social worker and he will be well prepared for separation.
13. It is the current plan of the Local Authority that Child A's placement matching will go alongside the family finding of the other children and it is hoped that Child A will simultaneously be placed in his long term foster placement whilst the other children are having introduction with their adoptive parents has been considered however it is felt that this would evoke emotion in Child A that is not necessary and can be avoided.
14. Child A will play a large part in the children's life story work as they will in his. As per parent's Child A will be supported to contribute should he wish in whatever forms he wishes. I can offer assurances that the children will be aware that they were very loved by their brother. As set out in the care plan, it is suggested that Child A too would be able to have indirect contact with his siblings in the form of letterbox contact once a year. I feel that once a year is sufficient as this is the same as parents and I would not want for Child A to feel pressured or questioned by parents regarding this in the future. Direct contact between Child A and his siblings should they be placed with adoptive parents is not being supported by the local authority. This would heighten the risk of placement breakdown for the younger children due to risks around confidentiality issues as the children grow older, but the local authority is concerned that Child A may feel conflicted or pressured to pass information onto birth family regarding his siblings.'
The reference to 'Horizons' is to a resource funded jointly by the local authority and Derby Hospitals NHS Foundation Trust which provides therapeutic interventions for children and young people in the care of the local authority, adopted children and care leavers.
46. The likely impact of the local authority's care plans upon the older four children was explored with the social worker in some detail. She made the point that the impact of separation of the children is unknown. That is plainly correct. Until the children have been separated it will not be possible to know what the reaction of each child will be. The social worker accepted that the possible reactions cover a spectrum at one end of which is the risk of causing one or more of these children significant emotional harm. The impact of separation can be likened to a bereavement. The social worker accepted that Child A, in particular, is likely to find it very distressing.
47. Although so far as Child A is concerned the impact could perhaps be ameliorated to a degree by enabling him to have ongoing direct contact with his adopted siblings it is the social worker's opinion that the risks arising from post adoption direct inter-sibling contact are too great for that to be a realistic option.
48. There is potential for the local authority to add to Child A's distress by the steps it is contemplating in order to manage the transition of his three younger siblings into their adoptive placement(s). So far as those three children are concerned the transition will comprise matching them with prospective adopters, introducing them to their prospective adopters and moving them on to live with their prospective adopters. The base from which this will happen is the children's current foster placement. The local authority acknowledges that if Child A is still in this placement when that process takes place then that risks adding to his distress at being separated from his siblings. It would be better if Child A were not in this placement when that process takes place. The local authority therefore proposes that when the time comes Child A should move into a respite placement and then return to his present placement after his siblings have left.
49. Child A is currently having weekly sessions with a local authority play therapist. The social worker and her manager had taken the decision that this would be appropriate. The brief given to the play therapist is unclear though the care plan dated 26 th July says that the purpose of play therapy is 'to support him in managing his loss and separation and support him to move forward'. As I have already noted, in the updating statement filed by the social worker on the second day of this hearing she says that a referral will be made to Horizons. Given that one of the services provided by Horizons is a consultation service it was surprising to hear that not only has there not as yet been a referral. Horizons has not even been approached for advice. The social worker was clear that the referral needs to happen.
50. The only child whose care plan does propose a referral to Horizons is Child B. In the final care plan dated 8 th May, under a section headed 'The child's identified needs' the plan promises that 'A referral to Horizons to be made for therapeutic input regarding attachments'. That same promise is made in the amended final care plan dated 26 th July. The social worker confirmed that no referral to Horizons has yet been made.
51. A possibility of minimising the impact on Child A may be to maintain him in his present placement. I was concerned to be informed that no approach has been made to the foster carers to ascertain their views on the possibility of the placement for Child A becoming his long-term placement. This is an option that remains completely unexplored. In light of the general consensus that this has proved to be a very good foster placement in which the children's needs have been well met it is clearly an option that needs to be explored. As this is not an in-house local authority foster placement but one that has been arranged through an independent fostering agency, the social worker queried whether the local authority would be willing to fund this placement on a long-term basis. This issue, too, is unexplored.
52. A long-term continuation of this placement for all four children would avoid the risk of distress and emotional harm for all of them. That possibility, too, is unexplored. So far as this possibility is concerned it is unexplored because the local authority's firm view is that long-term foster care is not appropriate for the younger three children even if that meant they could stay in their present placement. The local authority may be open to the placement becoming a long-term placement for Child A. It is resolute in its opposition to it becoming a long-term placement for Child B, Child C and Child D.
53. If the court accepts the local authority's final care plans for the younger four children then the social worker accepts that it will be important for those children that they continue to have direct contact with each other.
54. The allocated social worker is a senior practitioner. She believes her professional expertise and experience is sufficient to enable her to advise the court on the likely impact of separation of this sibling group. That said, she went on to say that she had not found this to be an easy case to deal with.
Children's Guardian
55. The Children's Guardian ('the guardian') has prepared two reports. He was present throughout this hearing. He has given oral evidence. He supports the local authority's final care plan for Child A. He is in broad agreement with the final care plans for the younger four children though there are one or two aspects of the plans on which he takes a different position.
56. The guardian has had discussions with Child A to ascertain his wishes and feelings about his future. In his final report, he records that,
'28. With regard to his future, Child A told me that he wishes to return home. He also told me that he loves his maternal grandmother but in the hierarchy of wishes in any future placements, despite this love, he favours remaining with his siblings rather than being separated from them. That would include any new "forever family" the younger children might be considered for and thus by crude implication, adoption.'
He continues,
'31. I note the wishes and feeling of Child A as expressed via his allocated social worker. These are slightly different from my work with him and is entirely possible as the work was carried out at different points in time. However, his views expressed to me are not compatible with a placement in foster care if his siblings are separated from him, as they are likely to be. Nevertheless, it is clear that he loves his grandmother and that his first preference is to return home. The option of foster care while not designed to do so, does offer a future hope of greater relationship between Child A and his grandmother in particular, and with his parents if they can eliminate the risk over time. Given the young ages of the younger three children this is not a viable option if there are adoptive parents available. For such young children it gives no permanent sense of belonging.'
57. Child A's position has not remained constant. That could be because he changes his mind. Alternatively it could be because he finds it difficult to reflect deeply on the information being given to him by his social worker. Child A is clear that if he is to be separated from his siblings then he would want to remain in his present placement. He is anxious about moving placements. If he cannot remain with his present carers then he would want to be able to continue to live in the area where he now lives.
58. Given the plan for ongoing direct contact between Child A and his mother and grandmother, the guardian agrees with the local authority that his contact with his younger siblings, post adoption, should be indirect letterbox contact because of 'the risk inherent' in direct contact taking place.
59. As I noted earlier, the guardian is also in broad support of the plan for adoption for the younger four children. He does, though, have some concerns. He agrees with the family finder that the search for an adoptive placement for Child B, Child C and Child D should be for six months and not for three months as proposed in the children's final care plans. It is clear that he has a strong preference for those three children to be kept together if at all possible. Though he did not say so in terms, the impression he gave was that he considers two two-children placements to be a less favourable outcome. The search for two two-children placements should run in parallel with the search for a joint placement for Child B, Child C and Child D. If that search is unsuccessful then then the search for two two-children placements should continue for a further three months.
60. The question then arises, what if no suitable placements are found by the end of the nine month search? Should the local authority then move on to consider four separate adoptive placements? The guardian's opinion is that there if the nine-month search does not yield results then there should not be an automatic transition to a search for four separate placements. If the local authority decided to look for four separate placements then he would want the matter to be returned to the court for further consideration.
61. The guardian also emphasised the importance of maintaining the sibling relationship between Child B, Child C and Child D. In his final report he makes the point that,
'34. The sibling relationship between Child C, Child B and Child D is already established although less so in relation to Child E because of his age. If it is not possible for these children to be placed together I ask that thought is given to the possibility of direct and indirect post adoption contact between this sibling group which would, of course have to be considered with any prospective adopters and reviewed if this was problematic as part of the placement process.'
62. Important though it is to maintain the relationship between Child B, Child C and Child D, the guardian agreed with the family finder that this should be promoted at the matching stage and achieved with the agreement of the prospective adopters rather than imposed by way of court order. Post adoption contact can frighten adopters.
63. The local authority proposes to seek an immediate placement for Child E and will endeavour to find a placement that will accept the late addition of Child D in the event that it is not possible to place her with her two older full siblings. The guardian puts forward an alternative proposal. He suggests that Child E should not be placed during the currency of the search for a single placement for Child B, Child C and Child D. In the event that that search is unsuccessful then a search could be undertaken for a placement for Child D and Child E. They would then both be able to move into the placement at the same time. The guardian foresees the potential for difficulties if Child E is placed and an attempt is made to introduce an older child (Child D) into the placement later.
64. Finally, the guardian agrees with the social worker that it would not be appropriate for Child A to be in his present placement during the process of transitioning his three younger siblings into their adoptive placement(s). He proposes that during that transitioning period Child A be moved into a respite placement. This would be likely to last for no more than a month.
The law
Care proceedings - the court's approach
65. The parents agree that the s.31(2) threshold is met. That opens the gateway to the making of substantive orders. With respect to all five children the local authority seeks final care orders. The approach the court must take in determining those applications is set out in s.1 of the Children Act 1989. Section 1(1) provides that in determining what, if any orders, are appropriate the welfare of each child must be the court's paramount consideration. In determining what is in their best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(2) requires the court to have regard to the general principle that any delay in determining the local authority's applications is likely to prejudice the welfare of each of these children. Section 1(5) requires that the court should not make any order with respect to a child unless satisfied that making an order would be better for that child than not making an order.
Placement applications - the court's approach
66. With respect to the younger four children the court must also consider the local authority's applications for placement orders. The approach to determining those applications is set out in s.1 of the Adoption and Children Act 2002. Section 1(2) requires that when the court is coming to a decision relating to the adoption of a child the court's paramount consideration must be the child's welfare throughout his life. In coming to a decision the court must have regard to each of the factors set out in the welfare checklist in s.1(4). Sub-sections 1(3) and 1(6) largely mirror the provision of sections 1(2) and 1(5) of the 1989 Act.
67. In determining whether to make a care order and, if so, whether also to make a placement order the court must take account of the Article 8 rights of both parents and of all five children. In this case, given that the grandmother was the sole carer for these children for a period of some three months in my judgment the court must have regard to her Article 8 rights too.
Care plans
68. Section 31A(1) of the Children Act 1989 provides, so far as is relevant, that:
'(1) Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan ('a care plan') for the future care of the child...'
69. The court is required to consider the care plans. The extent to which they should be considered is an issue that was addressed in the final report of the Family Justice Review in 2011:
'60. There is little doubt that since 1989 courts have progressively extended their scrutiny of the care plan proposed by the local authority. This causes duplication and delay.
61. We believe this court scrutiny goes beyond what is needed to determine whether a care order is in the best interests of a child. Care plans are likely to need to change over time. Courts are not well equipped to scrutinise care plans and their involvement is not a guarantee of success. We also need to set against the possible benefit the cost and time it takes.
62. So we recommend that courts should refocus on the core issues of whether the child is to live with parents, other family or friends, or be removed to the care of the local authority. Other aspects and the detail of the care plan should be the responsibility of the local authority. When determining whether a care order is in a child's best interests the court will not normally need to scrutinise the full detail of a local authority care plan for a child. Instead the court should consider only the core or essential components of a child's plan. We propose that these are:
• planned return of the child to their family;
• a plan to place (or explore placing) a child with family or friends;
• alternative care arrangements; and
• contact with birth family to the extent of deciding whether it should be regular, limited or none.
70. The recommendations concerning the placement provisions of care plans were accepted by Government and, following amendment, is now reflected in s.31(3A) to (3C) of the Children Act 1989. The duty to consider the arrangements for contact set out in the care plan was already set out in s.34(11).
71. A question arises concerning the interpretation of the expression 'required to consider' as it now appears in s.31(3A)(a). In Re S (Children) and W (A Child) [2007] EWCA Civ 232 at §27, Wall LJ made the point that,
72. Does the expression 'required to consider' imply any watering down of the 'duty rigorously to scrutinise' the care plan. In my judgment it does not. The exercise of the court's powers under Part IV of the Children Act has the capacity to change the course of a child's life forever. It is appropriate, therefore, that those powers should be exercised with the great care. The burden of responsibility on the judge is immense. Consideration of the permanency provisions of a care plan implies a requirement 'rigorously to scrutinise' those provisions. Nothing else will do.
Configuration of placements
73. In the event that the court is persuaded that some of these five siblings should be placed for adoption, the next question which arises relates to the configuration of their placements. Which of these siblings should be placed together? This is an issue which arose in the case of Re S-C (Children) [2012] EWCA Civ 1800. The Court of Appeal declined to give guidance on this issue. Giving the leading judgment, Baron J said,
Re B-S (Children)
74. It is important also to have regard to the guidance is set out in the authorities. In this case it is particularly important to have regard to the decision of the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146. The facts of that case are not relevant but the principles set out are highly relevant to the decisions I have to make. The approach to determining whether a placement order is appropriate is stringent. Such an order should only be made (§22).
' where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort - when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do "'
75. In order for the court to be able to determine what nothing else but adoption will do (§34),
76. The judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare. It follows, therefore, that (§84),
'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.'
The boundary of responsibility between the court and the local authority
77. The guardian is of the opinion that if the local authority is unable to identify either a single placement for Child B, Child C and Child D or two two-children placements the matter should come back before the court before the local authority considers undertaking a search for four individual adoptive placements. That raises an important question about how that might lawfully be achieved.
78. The boundary of responsibility between the court and the local authority has been considered in a number of cases. Re S; Re W (Care Order: Care Plan) [2002] UKHC 10 was an appeal against a decision of the Court of Appeal in which it had endeavoured to introduce a practice of identifying 'starred milestones' in care plans. Lord Nicholls explained the innovation thus (§17):
79. The House of Lords rejected the proposed innovation which it considered to be outwith the court's powers. Lord Nicholls identified as a 'cardinal principle' that (§25):
'The [Children] Act delineated the boundary of responsibility with complete clarity. Where a care order is made the responsibility for the child's care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority's discharge of its responsibilities. That was the intention of Parliament.'
Save that it has the power to order that a care order be discharged and the power to determine issues relating to contact with a child in care, upon the making of a final care order the court's role in the life of that child comes to an end.
80. More recently, the Court of Appeal has determined that the same limits apply to the making of a placement order. In Re A (Children) [2013] EWCA Civ 1611, McFarlane LJ made it clear that,
'A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority' [emphasis added].
The fact that in almost all cases the court will be making a final care order under CA 1989, s 31 at the same time as making a placement for adoption order, and there is plainly no power to add conditions to a care order, only goes to underline the position.
a) vary or revoke the placement order [ACA 2002, ss 23 and 24];
b) make orders for contact [ACA 2002, s 26].
81. The Adoption and Children Act 2002 delineates the boundary of responsibility with complete clarity. Where a placement order is made the responsibility for placing the child with prospective adopters rests with the local authority (in its role as an adoption agency) and not with the court. The court retains no supervisory role to monitor the authority's discharge of its responsibilities. That was the intention of Parliament.
Dispensing with parental consent
82. What, then, is the judge to do if there are concerns about how the local authority might act in reliance upon the placement order? McFarlane LJ addressed that issue in Re A (Children):
'The court cannot dispense with the consent of any parent or guardian of a child 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.' [emphasis added]
39. The judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 set out in clear terms how the word 'requires' in s 52(1) is to be applied. The passage in Re P is well known and there is no need to repeat it here. The question, after applying the life-long focus of the welfare provisions in ACA 2002, s 1, is whether what is 'required' is adoption, as opposed to something short of adoption. The interpretation of s 52 in Re P was expressly endorsed by the Supreme Court in Re B (A Child) [2013] UKSC 33 and given general application in the judgments of the court where the need for a proportionate justification for adoption was underlined by the use of phrases such as "nothing else will do", "a very extreme thing" and "a last resort".'
83. Put shortly, if the court has concerns about the appropriateness of a plan for placement for adoption, whether as to the principle of adoption or, I infer, as to the detail of the plan, the pre-conditions out in s.52(1) of the Adoption and Children Act 2002 for dispensing with parental consent are not met and the court may not, therefore, make a placement order.
Post placement contact
84. If the court is persuaded to make placement orders in respect of one or more of these children difficult issues may then arise concerning post adoption inter-sibling contact. Before the court may make final care orders for these children, the court is required to consider the arrangements for contact. Section 34(11) of the Children Act 1989 makes that clear.
85. The Adoption and Children Act 2002 also contains important provisions requiring the court to consider, and if in the child's welfare interests to make, orders for contact (see sections 1(4)(f), 26, 27 and 46(6)) in respect of a child when placing that child for adoption and before making an adoption order.
86. These provisions raise two important issues in this case. Firstly, if Child A is placed in long-term foster care and the other four children are placed for adoption, should Child A have direct contact with his younger siblings and, if he should, should that be underpinned by an order of the court or left to be determined by the children's carers? Secondly, should the identified need for ongoing direct inter-sibling contact between the four younger children be underpinned by an order of the court or left to be determined by the adopted children's carers?
87. In terms of the approach the court should take when determining such issues, regard should be had to the observations made by Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535. He said that,
153. ...the judge's judgment is predicated on the proposition that the relationship between the two children is of fundamental importance, and that the relationship must be maintained, even if the children are placed in separate adoptive placements, or if one is adopted and the other fostered. In these circumstances it is not, in our judgment, a proper exercise of the judicial powers given to the court under the 2002 Act to leave contact between the children themselves, or between the children and their natural parents to the discretion of the local authority and/or the prospective carers of D and S, be they adoptive parents or foster carers. It is the court which must make the necessary decisions if contact between the siblings is in dispute, or if it is argued that it should cease for any reason.
154. We do not know if our views on contact on the facts of this particular case presage a more general sea change in post adoption contact overall. It seems to us, however, that the stakes in the present case are sufficiently high to make it appropriate for the court to retain control over the question of the children's welfare throughout their respective lives under sections 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post adoption in accordance with section 26 of the 2002 Act, under section 8 of the 1989 Act. This is what Parliament has enacted. In section 46(6) of the 2002 Act Parliament has specifically directed the court to consider post adoption contact, and in section 26(5) Parliament has specifically envisaged an application for contact being heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned.
Welfare checklist analysis
88. I begin my evaluation of the evidence by undertaking a welfare checklist analysis in accordance with the provisions of s.1(3) of the Children Act 1989.
89. Section 1(3)(a) requires the court to consider the ascertainable wishes and feelings of these five children (considered in the light of their ages and understanding).
90. This is a complex case. It is difficult for a child of Child A's age to have a real grasp of the issues. The guardian accepts that the fact that Child A has not expressed his wishes and feelings consistently could be because he has genuinely changed his mind or because he is having difficulty grasping the issues. Child A has said that he wants to remain with his younger three siblings. He has said that he wants to return to live with his birth family. If he is to be separated from his siblings then he has expressed the wish to be able to remain in his present placement. If he cannot remain living in his present foster placement then he would like to remain living in the same area. This does not reflect a mature prioritisation of the options but, rather, the difficulty Child A has in expressing his wishes and feelings.
91. Given the complexity of the issues and their respective ages, four younger children are too young to be able to express their wishes and feelings in any meaningful way.
92. Section 1(3)(b) requires the court to consider the children's physical, emotional and educational needs.
93. The oldest four children have suffered neglect whilst in the care of their birth family. Child B, Child C and Child D suffered developmental delay which is environmental in its origins. All of these children have made good progress whilst in their current foster placement. Their state of recovery is such that their physical and educational needs are now broadly the same as other children of their ages.
94. The children's emotional needs of the four older children are more complex. Albeit that in terms of their overall situation they have benefitted enormously from the care they have received in their foster placement, being separated from their birth family is bound to have had an impact upon them emotionally. That is particularly the case so far as Child A is concerned. To that extent these four children are emotionally vulnerable. They have emotional needs which most other children of their ages do not have.
95. Section 1(3)(c) requires the court to consider the likely effect on the children of any change in their circumstances.
96. The change in the children's circumstances being proposed by the local authority is that Child A should move to an as yet unidentified long-term foster placement; that Child B and Child C be placed together in an adoptive placement; that if possible Child D should be placed in the same placement and if that is not possible then she should be placed for adoption with Child E; that Child E should be placed for adoption either on his own or, if necessary, with Child D; that Child A should have annual letterbox contact with his younger siblings; and that whatever the configuration of the adoptive placements, those children placed for adoption should continue to have direct contact with each other.
97. These changes are profound. They will have a life-long impact on all of these children. At least in the short term, it is likely that the changes will have an adverse impact on the emotional well-being of the older four children. The greatest impact is likely to be on Child A. That said, the separation of the oldest four children could have an adverse impact on the emotional well-being of all four.
98. Section 1(3)(d) requires the court to consider the children's ages, sex, background and any characteristics of theirs which the court considers relevant.
99. These children are all of dual-heritage, Asian (Pakistani) and white British. This will need to be given due weight in the search for long-term placements for them.
100. Section 1(3)(e) requires the court to consider any harm which any of the children has suffered or is at risk of suffering.
101. None of these children has suffered any physical harm; there is no reason to believe that they are likely to do so in the future. For the reasons already set out, it is likely that the older four children, and in particular Child A, may have suffered emotional harm whilst in the care of their birth family and as a result of the separation from their birth family. There is a risk that separating the oldest four children in the way proposed by the local authority could cause those children further emotional harm.
102. Section 1(3)(f) requires the court to consider how capable each of the children's parents is of meeting his needs. In this case this factor extends to consideration of the grandmother's parenting capacity, too.
103. Neither the parents nor the grandmother has the capacity to meet the full range of the needs of these children. They accept that to be the case.
104. Section 1(3)(g) requires the court to consider the range of powers available to the court under the Children Act in the proceedings in question.
105. If the court is satisfied that the threshold set by s.31(2) of the Children Act 1989 is met in this case then, put briefly, the orders open to the court range from making some or all of the children the subjects of final care orders to, at the other end of the spectrum, making no orders.
106. In this case all parties are agreed that all five of these children should be made the subjects of final care orders. There is no prospect of rehabilitation of any of these children to their wider birth family. No-one has been positively assessed as a potential long-term carer for any of these children. In those circumstances the realistic options are stark: adoption or long-term foster care.
107. In considering the application for placement orders in respect of the four younger children the court must have regard to the somewhat different welfare checklist set out in s.1(4) of the Adoption and Children Act 2002.
108. With respect to s.1(4)(a) [ wishes and feelings], s. 1(4)(b) [ needs], s.1(4)(d) [age, sex, background and characteristics] and s.1(4)(e) [harm suffered or at risk of suffering] there is nothing to add to the analysis set out in respect of the equivalent provisions of s.1(3) of the 1989 Act
109. Section 1(4)(c) requires the court to consider the likely effect on each child (throughout his or her life) of having ceased to be a member of the original family and become an adopted person,
110. Child E has never lived with his original birth family. He was placed in foster care at birth. His knowledge of his original family will depend upon the quality of any life story work undertaken with him and the reliability of the contact he has with his older three full siblings. Given his age and the concerns about the parenting capacity of his birth parents and his grandmother, it is reasonable to anticipate that the effect on him of ceasing to be a member of his original family and becoming an adopted person is likely to be positive.
111. Child B, Child C and Child D are aged 4, 3 and 2 years old respectively. In light of the complexities of this case, in particular with respect to the configuration of the proposed adoptive placements and the arrangements for post adoption inter-sibling contact, it is appropriate to be somewhat guarded when assessing the impact on them of ceasing to be members of their original family and becoming adopted persons. The intention and expectation is that the impact will be positive and life-enhancing. There is no guarantee that that will prove to be the case.
112. Section 1(4)(f) requires the court to consider the relationship which each child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, 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 any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
113. With respect to s.1(4)(f)(i) the relationships that fall for consideration are (a) the children's relationships with their parents and (b) their relationships with each other.
114. There is clear evidence that Child A wishes to maintain an ongoing relationship with his mother and grandmother and that it is in his interests to do so. The evidence does not suggest that there is any significant value in the relationship between the younger siblings and their parents being maintained beyond the annual letterbox contact proposed by the local authority.
115. The position concerning the children's relationships with each other is less clear. The evidence strongly suggests that there is significant value in ongoing direct inter-sibling contact between the four younger siblings. There is no evidence before the court concerning the impact on Child A, Child B, Child C and Child D of separating them from one another and of Child A not being allowed to have direct contact with Child B, Child C and Child D. I am in no doubt that that is a gap in the evidence. It is, potentially, a significant gap. It is accepted that Child A will be distressed by the separation. So, too, may his younger half-siblings. What is the risk that that may cause emotional harm to one or more of the older four children? Is that an acceptable risk? How can that risk be managed? The evidence does not allow those questions to be answered with any degree of confidence.
116. In this case s.1(4)(f)(ii) and (iii) have no particular relevance. Birth parents and grandmother have all been ruled out as possible long-term carers for any of the four younger children. The parents and grandmother do not agree to the making of placement orders. Their stance is taken primarily on the basis that they wish to have ongoing direct contact with the children. In light of the fact that they are ruled out as carers for any of the children, if their position is inconsistent with the children's welfare interests then little weight should be attached to their objections.
Evaluation of care plans
117. I noted earlier the duty on the court 'rigorously to scrutinise' the permanence and contact provisions of the care plans. That scrutiny is required of each child's care plan.
Child A
118. The position taken by the local authority, supported by the guardian, is that in view of Child A's age and his background it is highly unlikely that an adoptive placement could be found for him. In the circumstances it is urged upon me that long-term foster care is, for him, the only realistic option. I agree. That still leaves a number of unanswered questions so far as Child A is concerned: (i) Can Child A remain in his present placement on a long-term basis and if he can is that appropriate? (ii) Should Child A's contact with his younger siblings be annual indirect letterbox contact as proposed by the local authority and supported by the guardian, or should he have direct contact with some or all of them? (iii) If he should have direct contact what should be the frequency? (iv) If Child A should have direct contact with any of his siblings, should that be left to the co-operation of the children's new carers or should it be the subject of an order of the court?
119. As for the first of those questions, I am unable to answer it. The question has not been put to the foster carers. In my judgment, it should be put to them. The answer to that question may give rise to secondary questions (for example, whether the local authority is prepared to accept the financial commitment involved in funding this agency foster placement on a long-term basis). The primary question needs to be addressed.
120. Of equal if not greater importance for Child A is the issue of post adoption contact with his siblings and in particular with Child B, Child C and Child D. The evidence strongly suggests that there is a close bond between these four children. It is accepted by the local authority that separating Child A from his siblings will be distressing for him. To deny him the opportunity to have face to face contact with them will add to his distress.
121. I noted earlier that in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, on the facts of that case Wall LJ made the point that (§154)
the stakes in the present case are sufficiently high to make it appropriate for the court to retain control over the question of the children's welfare throughout their respective lives under sections 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post adoption in accordance with section 26 of the 2002 Act, under section 8 of the 1989 Act
122. In this case I am not satisfied, on the present state of the evidence, that it is possible for the court to come to a reliable decision about whether 'the stakes in the present case are sufficiently high to make it appropriate for the court to retain control' over issues of contact. Before the court can come to a view on that issue the court needs to have reliable professional evidence as to the emotional impact on Child A of the separation and contact proposals in his present care plan. If there is a likelihood that his distress may be at a level that could cause him emotional harm then the court needs to be satisfied, firstly, that the plan is proportionate and, secondly, that the local authority has identified the resources needed to help Child A through what could be a very difficult transition. In this case 'proportionate' includes proportionate to the perceived risks to the younger children's placement of post adoption direct contact with Child A.
123. I am satisfied that these gaps in the evidence are of a nature and degree that make it inappropriate for the court to come to a final view on Child A's care plan. The gaps in the evidence must be filled.
Child B
124. The realistic options for Child B are long-term foster care or placement for adoption. The case against long-term foster care includes, for example, that it is not as permanent as adoption (foster carers can give notice to terminate the placement); it carries with it the stigma of being a looked-after child; and that it has all the burdens that go with being a looked-after child - e.g. six-monthly LAC reviews, occasional change of social worker giving rise to the need to keep going over old ground, permission from the local authority is required to go on holiday abroad. Given Child B's age, all of the burdens of being a looked-after child may continue for almost fourteen years. Adoption, in contrast has a much greater degree of permanence; it enables complete integration into the life of the new family; it enables roots to be put down; it achieves a degree of normality in daily life that is missing from long-term foster care.
125. The positives of long-term foster care have not been evaluated. More precisely, there has been no exploration of the possibility of the present foster carers being able to provide a home for this sibling group of four children on a long-term basis or, if that were possible, of the value of that for Child B. Putting that point in another way, there has been no attempt to evaluate the impact on Child B of separating him from Child A. There has also been no evaluation of the negative consequences of adoption. In particular, if the premise that post adoption contact with Child A could destabilise the adoptive placement is a reasonable premise, there has been no evaluation of the consequences for Child B of not having direct contact with Child A. The gaps in the evidence which I identified earlier prevent an adequate evaluation of those issues being undertaken.
Child C
126. Child C's position is the same as the position of Child B. The only point of difference between them is that the evidence suggests that although there is a good sibling relationship between all four of the children currently placed together, there is a particularly strong bond between Child B and Child A.
127. With respect to both Child B and Child C there has been no evaluation of the consequences for them of being separated from Child D as well as from Child A
Child D
128. Child D's position is similar to that of Child B and Child C though on the basis of the local authority's final care plan she may have to face not only separation from Child A but also separation from Child B and Child C. Although, in the event of that separation taking place, Child D may have ongoing direct contact with her two older full siblings she would cease to have direct contact with Child A. The potential consequences of that for her have not been evaluated.
Child E
129. The position concerning Child E is the most straightforward of this sibling group. He is only five months old. He has never lived with any member of his birth family. There is no one within his birth family who can care for him on a long-term basis. His relationship with his siblings is no more than embryonic. The pros and cons of long-term foster care suggest that such an order will not meet his long-term welfare needs. In contrast, there is good reason to believe that adoption is likely to be consistent with his welfare throughout his life. However, the plan for Child E to be placed for adoption is complicated by the uncertainties relating to the placement of his older siblings. If the court should approve the local authority's plan for adoption for Child E, when should he be placed? Should he be placed as soon as a match with prospective adopters can be made (the local authority's position) or should placement be delayed until the placements for Child B, Child C and Child D have been determined? If the former, how important is it that the match should be with prospective adopters who would be willing to agree to Child D being placed with them later should it not be possible to identify a placement that will take Child D and her two older full siblings? It is this issue which imports a significant degree of uncertainty into the care planning for a child for whom, on the basis of age alone, the identification of a suitable adoptive match ought to be achievable relatively quickly.
Conclusions
130. Cases involving large sibling groups present significant challenges to local authorities in terms of care planning. They also present a significant challenge to the court. The fact that a sibling group involves more than one father, that there is a relatively wide age gap between the oldest and the younger four half-siblings, that the children are all of dual-heritage adds to the complexity.
131. In this case I am satisfied that I am not able to approve any of the final care plans for these children at this moment in time. Before I can do so it is important for the court to know whether these foster carers are willing to offer a long-term home either for the four children who are with them now or just for Child A. I am also satisfied that before the court can properly evaluate the local authority's plans to separate the oldest four children there needs to be an expert assessment of the children by an appropriately experienced child psychologist. The areas for assessment are, with respect to each of the oldest four children, the likely impact on their emotional wellbeing of separation from their siblings and of contact between Child A and his siblings being restricted to annual letterbox contact. For the purpose of s.13(6) of the Children and Families Act 2014, I am satisfied that the proposed expert evidence 'is necessary to assist the court to resolve the proceedings justly'.
Postscript
132. Since circulating a draft of this judgment the social worker has spoken to the foster carers. The foster carers have expressed a wish to continue caring for Child A, whom they described as 'an absolute pleasure'. In view of their own ages, the foster carers do not consider it appropriate to offer a long-term home for Child B, Child C and Child D. If the court approves placement of Child A with his present foster carers the local authority has agreed to fund that placement on a long-term basis.
