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

Neutral Citation Number: [2024] EWFC 440 (B)

Case No: BM24C50206

IN THE FAMILY COURT

AT BIRMINGHAM

Priory Courts

33 Bull Street

Birmingham, B6 6DS

Friday, 22 November 2024

BEFORE:

DISTRICT JUDGE PARKER

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BETWEEN:

BIRMINGHAM CITY COUNCIL

Applicant

- and -

(1) NK
(2) DH
(3) A CHILD BY THEIR CHILDREN'S GUARDIAN

Respondents

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MS K WILLETS appeared on behalf of the Applicant

MS T LIM (instructed by Brendan Flemming Solicitors) appeared on behalf of the First Respondent

MS J SPARROW (instructed by Anthony Collins Solicitors) appeared on behalf of the Second Respondent

MS C STEER (instructed by McDonald Kerrigan Solicitors) appeared on behalf of the Third Respondent

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JUDGMENT

JUDGE PARKER: I am concerned with S who is now aged six years of age. This is the local authority's application for a care order and a placement order.

Pre-proceedings concerns

These consisted of high levels of bruising and injury to S due to poor supervision and neglect. There were also concerns in relation to substance misuse in relation to cannabis pertaining to the father and concerns of the father allowing S to spend time with a paternal uncle who is a convicted sex offender. The school also raised concerns as to the child's welfare and presentation.

S, at the time, was living with her father. The mother does not seek to be assessed to care for her.

It is noted that S disclosed to the school on 20 December 2023 that her mother had strangled her and also made a comment that she felt sad with the 'monster', but he only 'cuddled her' and then picked up a toy baby and kissed its bottom, and said it was 'mean'.

The local authority's initial application was for a supervision order. However, on 17 July 2024 S disclosed to her learning mentor at school that the father had thrown her against her bed and therefore the local authority sought removal.

It is fair to say the father denied this allegation, as a holding position, the local authority tried to implement a support plan but the father refused.

Chronology

On 11 January 2024 S disclosed that the 'monster' is back and "He's at daddy's now but does not live there. He comes into her room and sings in her ear. She does not like it."

On 22 January 2024 S disclosed that her dad pushed her over and left her on her own.

Threshold

The threshold sets out the following. Chronic neglect. The child wets and soils herself and self-harms, which is indicative of emotional harm. There is a risk of sexual abuse, and the child has suffered injuries.

Father denied that those injuries were inflicted and provided an explanation but accepted the interim threshold was made out.

Evidence

There was a parent assess assessment of the father. It concludes that S's needs are not being fully met or adequately safeguarded by the father. There is a lack of supervision, and, despite extensive support, father has struggled to make and maintain changes within his parenting. There is a suggestion of disguised compliance. He furthermore struggles to identify risk with other people and particularly risky individuals (his brother being an example)

There are very few protective factors. Although the father does not himself present a direct risk to S, S is at a high level of indirect risk, particularly in relation to her uncle.

There is a child protection medical report of 5 August 2023. It records that there are multiple bruises, some of which are suspicious of inflicted injury, others in relation to a lack of adult supervision. There are also concerns raised as to the father's behaviour on the ward.

The social work report to the child protection conference on the 9 April 2004 reiterates concerns raised by the school as to how father speaks to S and his aggressive behaviour within the home.

There is a further child protection medical of 17 July 2024, following a report to the school on 16 July 2024 that the child fell from a scooter in her bedroom and hit her chin. It is reported that the father came in and shouted at her and picked her up under her armpits and threw her into the door. That statement was later retracted. Father maintains that S punched herself, leading to a bruise to her chin as she did not want to go to school. He maintains that she has a history of self-harming.

I note from the child protection medical that the father interrupted the examination on a number of occasions, affecting the child giving a free account of what she says happened.

The injuries recorded are a bruise to the chin, more commonly associated with inflicted injury. The father says S hit herself. On the right forearm and left forearm, bruising more commonly associated with inflicted injury, possibly being held firmly with fingers or a hand and on the right leg, again more commonly associated with inflicted injuries. It was commented that the injuries could be self-inflicted but there was scant history with regard to that in relation to the school.

I note that a child protection medical is referred to as having taken place on 18 June 2024, where the school were concerned as to the number of bruises the child is presenting with and her presentation suggestive of neglect.

Thereafter there was a graded case profile, which showed significant concerns as to father's ability to keep S safe, injuries being indicative of a lack of supervision and also concerns as to potential contact with unsafe people.

There is a SARC document, where no disclosures were made as to sexual abuse and no injuries indicative of sexual abuse. The findings therefore were neutral.

A child protection medical on 29 June 2024 was unable to conclude bruising was inflicted but, due to their number, there are concerns in relation to supervision and indeed father's interactions with S and rough handling and the aggression.

At the initial hearing at which an interim care order and removal was sought, the local authority's position was that the concerns were sufficiently serious enough to warrant immediate separation as being a necessary and proportionate response, and that no measure of support would mitigate that risk. The father's position was that he opposed the local authority's application for immediate separation and did not accept the high threshold for separation was met.

This case was initially heard by me on 7 August 2024, and I was persuaded to make an interim care order for immediate removal. It was also noted on that occasion that the mother accepted that she herself is unable to care for S but wished to maintain contact. She put forward no alternative carers and accepted the interim threshold.

On 22 August 2024, a case management hearing took place before me. It was recorded that the local authority does not seek a finding in relation to there being an inflicted injury to S. It is recorded also that the father sought the return of S to his care, he accepts threshold, and that her injuries were caused through a lack of supervision.

I made a number of directions on that occasion, timetabling matters to an issues resolution hearing, including the local authority providing an update on the work that they had undertaken with the father. The father was also to file a report from his GP, which remains outstanding.

I also directed hair strand tests of the father. This shows positive results in relation to cannabis and also chronic alcohol usage between June and September of 2024.

The local authority subsequently issued a placement application on where I gave directions.

I have received a report from the school, which states that the father's engagement seems to be reactive and there are significant concerns in relation to the level of injuries and bruising and emotional distress exhibited by S in not wanting to go home. She is also presented as unkempt. Although it is later reported that there is no history of self-harming, I note that there was an incident on 6 March 2024 where she bit herself on the arm. It appears that this was an isolated incident.

I have also read a report from the school nurse. Reference is made to the father's behaviour during a telephone call on 26 February 2024 and again concerns with regard to bruising. It is commented that S's behaviour is suggestive of trauma. An incident is reported where she barricaded herself under the desk with her teddies. Concerns were also raised as to parental supervision.

The local authority have also filed a statement as to the delay in instigating proceedings in this matter. The explanation was, due to their commitment and extensive support and intervention they believed that with adequate support, proceedings could be avoided. Sadly, that has not proven to be the case.

I have also received a report from the family finder. It points to 39 possible families who would be able to put themselves forward as adoptive carers for S but needs to be refined to cater for her individual needs. This provides statistics as to the number of older children placed with adoptive carers in a three-year period.

Father, to his credit, accepts threshold but, and understandably, he opposes adoption. He denies physical abuse. He accepts that he behaved poorly in one contract session. He is continuing to work with CGL and accepts that he is not in a position to care for S at this present moment in time, pending the completion of the work he needs to undertake. However, when he has undertaken that work, he would wish to resume care of her, and he gives a date of within three to six months. He is concerned that any adoptive placement would break down due to S's age. He also raises the issue of there being an open adoption, namely adoption with contact.

The mother, as indicated, accepts that she is unable to care for S. She accepts that S is happy in her current placement and would like this to be her permanent placement via long-term foster care. She believes, like the father, that adoption is not appropriate for a child of this age due to the permanent severance of her birth family, given the knowledge she has acquired as to her parents.

I received a statement from Families Together. Work has been concluded with the family and concerns remain with regard to the father's parenting, specifically neglect, substance misuse, lack of appropriate supervision and inability to assess risks in order to safeguard S. It is recorded that the father often deflected the concerns and disputed the findings of the parenting assessment, and felt that the work was unnecessary and minimised matters and did not recognise the need for future support. He appeared, at the time, to be overwhelmed by the extent of professional involvement.

His engagement in the intervention plan was not without its difficulties insofar as contractability was concerned, although some work has been undertaken and his insight has begun to show some improvement, albeit there are still concerns as to father's ability to sustain engagement. Ultimately, it concludes that they cannot remain confident that the father would manage all of S's care needs independently. He is isolated and has no family support.

The local authority's final evidence states that, effectively, she remains in a short-term foster placement. A family group conference referral was made, but that was closed due to father's non-engagement. There were difficulties with family time on 5 September 2024, which necessitated it ending prematurely due to father's aggression towards the social worker and his emotional deregulation and the impact that that had on S.

Their plan for placement for adoption has been endorsed by the independent reviewing office on 7 October 2024 and ratified by the agency's decision-maker on 22 October 2024. It is allured that there is a medical report on 11 October 2024 which concludes that some of S's injuries appears to be non-accidental in nature and were more likely consistent with the account that S gave to the school, rather than that of her father I have not seen that report and the threshold itself does not seek findings in relation to inflicted injury.

The local authority therefore seeks care and placement orders, although albeit in their evidence, they said there should be a time-limited search of 12 months in relation to that due to her age.

The children's guardian report shows that S speaks positively about her school and her friends at school and there are no concerns. If a placement order were made, there would, by definition, a need for her to move schools.

Mother recognises she is not able to care and does not support rehabilitation to father's care. Father ultimately seeks to care for S and requests three to six months to undertake that work. However, the guardian is of the view that the work that father needs to undertake is not within the child's timescales. Indeed, such changes need to be tested and sustained.

The father denies excessive alcohol use, despite the test results, but does accept that S has suffered harm in his care which has impacted on her. The guardian is of the view that the father is unable to provide the level of parenting that S requires due to the impact of his own mental health difficulties, which remain a risk factor. He is also unable to recognise the defects in his parenting, despite involvement of the Family Together service and he minimises the risks. She also states that he has issues with regard to emotional regulation.

She comments that S herself displays trauma-based behaviours and needs therapeutic support. She needs carers that are familiar with this and, although a plan of adoption may not bear fruition, it should be given an opportunity, rather than totally discounted, albeit long-term foster care is a secondary option.

The issues resolution hearing was only recently before me on 18 November 2024. It is recorded, as I have indicated, that the local seek care and placement orders which are supported by the children's guardian, but with a time-limited search. Both parents consent to final care orders, but oppose placement orders, their preference being long-term foster care and for the father to seek further assessment as part of the child in care process. Threshold was agreed and there is a document dated 2 October 2024 reflecting that.

I made directions for the local authority to provide an updated statement to address the Adoption and Children Act 2002 checklist and also the question as to adoption with contact together with an amended updated care plan.

As it happened, due to a gap in my list I was able to accommodate the matters for a final hearing over the course of 21 and 22 November 2024. I am grateful for the parties to have also made themselves available to attend a short notice final hearing as I felt it inappropriate to deal with matters and conclude matters at the IRH, given the nature of the application before the court.

The issue in this case is whether the final plan for S should be one of adoption or long-term foster care.

As directed, the social worker has filed an additional statement. It is recorded that there is a secure bond with the foster carers and that she is thriving in their care. She has no additional needs save appropriate therapeutic parenting to deal with her early trauma. She has built significant relationships with her parents due to her age and will need to be supported in any permanent move to an adoptive placement. A robust support plan will be required. Whilst long-term foster care can maintain links with the parents, father's contact, it is said, has not always been positive and such contact can re-traumatise her.

It comments that maintaining contact with the mother and indeed the child's half-brother, albeit whilst S is aware of him she does not have what can be described as a close relationship, could also deepen her sense of loss. It is accepted that there is an additional loss if she is separated from her foster carer, but points to the danger of placement breakdown whilst remaining in long-term foster care given that she is only six.

It is maintained that adopters, however, can invest in a child to a significantly greater extent. An open adoption order could also be difficult due to the father's lack of insight, and the destabilising effects of the same. It also depends on the adopters themselves.

Subsequent to the issue of resolution hearing, the father also issued an application for an order under Section 26 of the Adoption and Children Act 2002 as to contact, should the court endorse the local authority's plan for placement orders.

Oral Evidence

The Social Worker

Examination in Chief

The Social Worker confirms that S looks forward to contact. Contact is good and engagement is positive most of the time, and the father is responsive to her needs. There are some occasions when the father needs to be proactively engaging with her, as she can get bored, and he will need prompting. He also needs to enforce boundaries. The social worker was unable to observe mother's contact.

The social worker clarified that the time period of search for potential adopters should now be set at no more than nine months. If a placement order does not bear fruition, or no placement order is made, the intention of the local authority is that S will remain with her current foster carers on a long-term basis. Suggestions have been made at some point in the future that they may be prepared to apply for a special guardianship order, but that may well be some years off.

Cross-Examination by the Father

The Social Worker was asked questions in relation to the father's application for contact post-placement order. They challenged as to the local authority's plan with regard to letterbox only contact. The reason why this was proposed is that S needs to settle in the placement, and direct contact would be disruptive. They indicated that, to their knowledge, one of the contacts displayed concerns around father's behaviour. This may be isolated, but the risk remains nonetheless.

Currently father has contact with S twice a week. However, the plan is for this to be reduced, albeit gradually. When adoptive carers have been matched, the intention is that there will be a final visit.

The nature of the father's application for contact between now and when adoption will be made was put to the social worker. The father seeks continuing fortnightly contact, a reduction from what it is at present. The social worker commented that the plan was for reduction to monthly until the matching process had taken place.

They were challenged as to the potential sea change with regard to post-adoption contact. Rather surprisingly, it appears that he was not aware of the recent report released in November 2024 from the Public Law Working Group in relation to the same. They were challenged that the current care plan appeared not to highlight any concerns with regard to the child and yet she has suffered neglect, has experienced difficult parental relationships, has self-harmed and bed wet. Her age was also given as five as opposed to six.

They were also challenged that it seems to suggest that there was a finding of physical abuse, when of course there is not. However, they indicated that none of these factors nullify the ADM decision making process.

They were challenged in relation to the ADM decision, and it was put to him that it does not analyse the likelihood of an adoptive placement or post-adoptive placement contact as it only deals with the parents' ability to care. The father is not seeking S's return but seeks for her to remain with her current carers.

It was put to the social worker that the child wishes to return to her father or in the alternative remain in foster care. She does not want to go to a new family.

It was put to them that the current carers are attuned to S's needs. They are experienced carers and were approved as long-term foster carers previously. There are currently no other children in their care. They are happy to keep S and to even consider a special guardianship order in the future. The social worker was of the view, however, that S needs to be given the opportunity of an adoptive family via a limited search.

In relation to contact going forward, the social worker is of the view that this could be disruptive. However, they were challenged on the basis that the incidents of disruption are minimal and that the father accepts that at the moment he is not in a position to care for S. The current placement is working.

However, the social worker highlighted that this has only been S's placement since August 2024.

It was put to the social worker that the adopters may not have similar experience with dealing with traumatised children. The social worker indicated that this would be mitigated by the support provided but accepted that in adoptive placements this can be limited.

It was put to the social worker that if S remains where she is, there will be no change of school needed. She is well settled. If S was to remain in long-term foster care, it is proposed that there will be a gradual reduction of contact to that of monthly and then six times per annum. When challenged as to why this is so, the social worker was of the view that S needed time to settle. They were challenged as to why the father's suggestion of fortnightly contact could not be considered, bearing in mind that S is already in placement. The social worker stated that they had only been there for three months. They were challenged that this figure seems to have been plucked out of the air in relation to the reduction of contact and that such proposals need to be child specific.

They were challenged about the difficulties in placing a child of S's age and indeed the timescale that could take place before a placement could be found. There was a suggestion that the adopter of the child's older half-sister had been approached but there is scant evidence before the court with regard to information in relation to that, and it is noted that that placement itself has broken down.

It was put to the social worker that the current placement is a known placement, and that an adoptive placement would create uncertainty, both for the child and for the foster carers. The social worker responded that the foster carers are committed, whatever the outcome. They accepted that stopping contact ultimately is a loss.

They were challenged as to what the harm is of continuing contact throughout the placement process. They believed that the lesser contact would enable S to settle much quicker and effectively during the process.

Cross-examination by Mother

The social worker was asked questions with regard to letterbox contact post-adoption. They were challenged as to the analysis with regard to that, or rather the lack of it, as there appears to be scant detail in relation to this.

It was put to them that S knows she has a half-sibling and there has been no negative impact in relation to the mother's contact, and that no consideration has been given to the positive aspects of the mother's contact, albeit that latterly the father has been the main carer. The social worker responded that the mother's contact has not been as consistent. They were challenged to the effect that, notwithstanding that, the possible placement itself has not been disrupted, and indeed more particularly the mother supports that placement, a placement which is now settled.

It was put to the social worker that therapeutic intervention cannot be undertaken until S is in her long-term placement, and therefore, through the adoption process, this will be delayed. The social worker commented that the foster carers themselves still need to go through a matching process, as well. I l understand that this process will still take between six and nine months.

Cross-Examination Child's Solicitor

It was explored that there were two contact incidents referred to in the papers, that on 5 September and that 19 September 2024. With regard to the father's application pursuant to Section 26 of the Adoption and Children Act 2002, the social worker was concerned in relation to those incidents and their effects on S if there was to be a repeat. The social worker confirmed that the legal security provided by an adoptive placement is different. One cannot guarantee a foster carer's commitment in the long term, particularly one which has only been in evidence for three months. Any delay in relation to the adoption process is mitigated by the fact that the child remains in her current placement. The social worker also confirmed that the local authority will be looking for potential carers who are trained or willing to be trained in therapeutic parenting.

Children's Guardian

Examination in Chief

She confirmed that her recommendations remain the same, that there should be a nine month search for an adoptive placement.

With regard to father's application of contact, she feels that local authority should be able to manage this in the care plan. She proposes a staged approach to reducing contact to that of monthly but does not oppose father having contact up until the matching process. With regard to long-term foster care and the local authority's proposals in relation to reductions from fortnightly to monthly and then six times per year, the guardian commented that generically this is often the plan, but she will need to consider this more thoroughly and therefore remained neutral in relation to that. (This was ultimately dealt with in submissions)

Cross-Examination by the Local Authority

She accepted that the child needs the chance of securing a permanent family. She will remain where she is during the process and accepted there are some concerns in relation to contact. However, she felt that the adopter's hands should not be tied in relation to contact at this stage and that contact with the birth family should not take precedence over an adoptive family placement.

She agrees to a gradual reduction of contact for both parents to that of monthly, pending the outcome of the matching process. She recognises that long-term fostering would support her remaining where she is, but S needs to have permanency. In either situation, contact cannot be such as to destabilise that very placement, and in particular, with long-term foster care to destabilise the foster carer's own routine.

Cross-Examination by Father

She accepted she had not spoken to the foster carers with regard to their long-term plans. It was put to her that adoption appears to be the trump card as opposed to any other outcome, that her report seems to focus on the only realistic option being care and placement orders, and that she has not dealt adequately with the option of long-term foster care, only paying lip service to it, but with no concrete analysis. The guardian responded that she had considered it, but conceded she perhaps needed to make it more explicit. It was put to her that the advantage of long-term foster care is that S will remain in her current school, remain in contact with her parents and in a settled placement.

She was also challenged that the issues with adoption and contact was also not considered or analysed, particularly in light of the public law working group's recommendations.

SUBMISSIONS

Local Authority

The social worker's recent statement provides the appropriate analytical analysis of the two options before the court, long-term foster care is more intrusive, whereas adoption offers a sense of belonging and for S a family of her own, which long-term foster care cannot match. Therefore, that opportunity should not be discarded just because placement of an older child may be difficult. There is always a risk in relation to placement breakdown, despite the carer's expressed commitment looked at in the light of the fact that the placement has only existed for three months. Despite the public law working group's recent report, the legal framework remains the same. The priority should be given to the need for a permanent home.

The Father

It is maintained that the evidence before the court is deficient in relation to the appropriate analysis, including a placement order with contact. The Placement application and a search is not going to be a short-term fix. With long-term foster care, the court has before it a known quantity which maintains the child's relationship with parents and where therapeutic support can be commenced. There also needs to be a sea change with regard to contact and adoption and the benefits of the ongoing relationship between the child and her birth family. A placement order in this case would create uncertainty and delay.

The Mother

It is contended that whichever way this case progresses, the foster carers are committed to S. She has made progress in the placement. Little thought has been given to contact post-placement orders, and no evidence provided that mum would disrupt the placement.

The Child's Solicitor

The children's guardian submits that there should be a time-limited search for an adoptive placement of nine months, with long-term foster care being the alternative. It is considered that S needs therapeutic parenting and therefore the only options before the court is long-term foster care or adoption. It is contended that sadly the father is not able to make the necessary changes in the child's time scale. However, the child will remain where she is whilst the family finding process is undertaken.

The father's application for an order under section 26 of the Adoption and Children Act 2002 is unsupported. She was able, however, to indicate that if the court was persuaded not to support the local authority's placement application, that contact should be three times per annum for both parents, being Easter, Christmas and birthday.

THE LAW

In relation to an application for a placement order, a court should only separate a child from their parents if satisfied that it is necessary to do so and that nothing else will do (Re B [2013] UKSC 53). In undertaking that task, a judge must undertake a global, holistic evaluation of the options available for the child's future upbringing. In this case, the options are final care orders or final care orders with placement orders. I do not need to go through the issue as to threshold, as that is an agreed position, nor whether or not I should make a care order. That too is an agreed position.

As said in Re G (A Child) [2013] EWCA 165, what is required is a balancing exercise in which each of the two options in this case are evaluated to the degree of detail necessary to analyse and weigh their own internal positives and negatives, and each option compared side by side against the competing options.

As said in J v C [1970] AC 668, a process whereby when all the relevant facts, relationships, claims and wishes of parents, risks, choices and all the circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child's welfare.

Of course, a care order is a serious order that can only be made where the facts justify it, where it is in the child's interests and where it is necessary and proportionate. The aphorism, nothing else will do, of course applies only to cases involving a plan for adoption. That is where the court is considering the most serious of all orders, one which will sever the parental relationship altogether, a non-consensual adoption. As said in Re BS (adoption application of section 47(5)) [2013] EWCA 1146, such orders are a very extreme thing, a last resort, and should only be made when nothing else will do.

I also refer to Re F (A Child: Placement Order: Proportionality) [2018] EWCA 2761, that I have to consider the consequences; what will be the likely severity of the harm if it did come to pass. Risk reduction and mitigation; will the chances of harm happening be reduced or mitigated by the support services available? The comparative evaluation; Given the factors I have mentioned, how do the welfare advantages and disadvantages of a child growing up with their parents compare with those of adoption, and proportionality; ultimately is adoption necessary and proportionate?

In this case, there is a choice between adoption and foster care. I cite the case of Re LRP [2013] EWCA 3974:

"Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long term care may find themselves moved from one home to another, sometimes for seemingly inexplicable reasons. Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. Most importantly of all, a long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. There is no way in which a long term foster child can count on the permanency, particularity and enduring quality of their placement as a child who has been adopted.

The advantages of a placement order are obvious. Prospective adopters are required to submit themselves to a rigorous and very thorough assessment process over many months. Those who satisfy the selection criteria are ordinarily of the highest calibre. They may be confidently expected to provide extremely good parenting to any child who is matched with it in all areas of their development."

Re T (Placement Order) [2008] EWCA 248 held that uncertainty about the prospects of finding an adoptive placement does not in itself rule out the making of a placement order.

I also cite the case of Re F-S (A Child: Placement Order) [2021] EWCA 1212: Adoption is the most permanent form of order and the only option that extends beyond childhood. A child's needs may well extend beyond childhood and thus the permanency provided by adoption and forever nature adoption has a particular benefit. Adoption has greater stability than long term foster care with a much lower risk of placement breakdown, although there are cases where it would be with the same proposed carer. Adoption would mean that the child was no longer a looked after child. Being a looked after child means that they would be subject to statutory intervention, requiring social work visits, authorisation for particular activities and interference in family life. If an adoption order were made, it would be less likely that the child would not be vulnerable to further proceedings, unlike the situation if there were a final care order or indeed a special guardianship order.

As set out in Re V [2013] EWCA 913: adoption makes the child a permanent part of the adopted family to which they fully belong. The child is likely therefore to feel different from fostering. Adoptions do of course fail but the commitment of the adopted family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted they are, and who is free to determine the caring arrangement. Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time.

Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with their parents under section 34 of the Children Act. The contact position can of course be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adopted child. There are of course open adoptions, where the child sees their natural parents, but such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need permission before they can apply for such contact. Routine life is different for the adopted child, in that once they are adopted, the local authority has no further role in their life. No local authority medicals, no local authority reviews, no need to consult a social worker over school trips abroad for example.

Of course there are arguments against, or points against; the child ceases to be part of the birth family if legally adopted, even if the plan is for continued contact. Adoption is no panacea and adopters face all the vicissitudes of life encountered by other parents with the added complication that they are caring for a child who is not their birth child. Adoptions can and do break down, sometimes with disastrous consequences. The fact that the child is not brought up by its birth family can also cause that child emotional harm.

With regard to foster care, the points in favour are that the advantage of long-term fostering under a care order is that it does not sever the legal relationships between the child and their birth family. Long-term fostering will still allow the child's current foster carers to care for the child and contact is proposed, whatever the legal nature of the placement.

Points Against. A final care order means that foster carers will not have parental responsibility. It does not offer the same kind of permanence, has the continued intrusion of the local authority and makes the placement more vulnerable to future applications in the future. For example, for the child will be returned to their care and it does not extend beyond childhood.

I particularly note the case of Re J (A child: Long Term Foster Care Versus Adoption) [2033] EWFC 174 at paragraphs 34 to 48. A circuit-judge judgment, but a useful analysis with regard to foster care being a proper permanency option in many cases. Indeed, I have reflected that in my own published judgment of X A Local Authority v E & Ors [2024] EWFC 210 B

In relation to the father's application under section 26 of the Adoption and Children Act 2002, I note under section 27(4) that before making a placement order, the court must consider the arrangements for allowing any person contact with the child and to invite the parties to the proceedings to comment on those arrangements.

However, I also note the decision, Re C [1989] AC 1:

"The court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree. To do so will be to create a potentially frictional situation which will be hardly likely to safeguard or promote the wealth of the child. When no agreement is forthcoming, the court will, with very rare exceptions, have to choose between the making of an adoption order without terms and conditions as to access, or to refuse to make such an order and seek the safeguard contact through some other machinery. To do otherwise will be merely inviting future and almost immediate litigation."

As set out in Re R (Adoption: Contact) [2005] EWCA 1128, the imposition on prospective adopters of orders for contract with which they are not in agreement is extremely, and remains extremely, unusual.

Moving on more recently, Re B (A Child: Post-Adoption Contact) [2019] EWCA 29:

"Prior to the introduction of the Adoption and Children Act 2002 section 51A, the position in law was that the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual. Although section 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 section 51A or in section 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."

Of course, that case is dealing with section 51A, not section 26, but the principle bears relevance.

In conclusion, the case states that the law remains, namely that it will only be in extremely unusual cases that the court will make an order stipulating contact arrangements to which the adopters do not agree.

More recently, again, Re TR (Children: Refusal of Placement Order) [2021] EWCA 71:

"In conclusion, the judge was entitled to choose the children's welfare was best met by long-term fostering, although in that case it was dealt with on the basis of the importance of sibling contact. But it is common that the judge's observation that there was no effective mechanism for commitment to maintaining contact other than by adopter's agreement and goodwill, and that a court was unlikely to enforce an unwanted contact order upon adopters in respect of sibling contact, accurately reflected the approach advocated by the court. The insertion of section 51A into the Adoption and Children Act 2002, or the Children and Families Act 2014, creating a specific power to make post-adoption contact, does not herald a different approach.

Even more recently, we have the case of Re R and C (Adoption or fostering) [2024] EWCA 1302. It was held that the key element in the judge's reasoning had been a complete severance of ties with a natural family. However, it was commented that this was emphatically not true of any adoptions. The judge discounted the relevance of the possibility of continued contact between the birth family and the adopted child on the basis of contact was under the adopter's discretion. That overlooked the fact that it was the judge's duty to set the template for contact. It was the court which had the responsibility to make orders for contact if they were required in the child's interests.

Again, this was a case which also involved sibling contact, but commented it would be an extremely unusual case that the court would order contact arrangements to which the adopters did not agree, but that did not obviate the court's responsibility to set the template for contact at the placement order stage. It also commented that although a search for a placement might be unsuccessful, that was not a sufficient reason to refute a placement order in such circumstances.

JUDGEMENT

Having set out the paper evidence before the court, the oral evidence that I have heard, and the law, my judgment is as follows

I am satisfied that in view of the holistic analysis of all the evidences in this case, including the parenting assessment before the court, the local authority final evidence, the guardian's report and more particularly the local authority's recent analysis, that the court does have sufficient evidence upon which to conduct an holistic analysis of the two competing options, despite criticisms by father's counsel. Of course, I have heard further evidence from the social workers and the guardian themselves.

I accept that adoption is not a panacea in all cases where parents are unable to care for a child within the child's timescales. I accept that foster care in many cases is itself an appropriate permanency option.

I accept that this is also a finely balanced case. S, if I make a placement order, will suffer the loss of her parents and her foster carer, albeit the placement has only been one of three months' duration, but she is settled there, it is progressing well. There is a further potential loss from knowing her half-sibling, the loss of her school friends, and of course one has to factor in her age. That of course is set against a backdrop of her having the ability to have a forever family, and the benefits that are highlighted with regard to an adopted placement which can bring over long-term foster care.

As I have indicated, the current foster carer has only had S since August 2024. They may indeed at this stage be expressing commitment, but nevertheless it's still a short-term placement which has not stood the test of time.

Adopters, from day one, invest emotionally in an adopted child to a significant degree and I accept the argument that the search for such a placement should not be discarded merely because the chance of success may well be suspect.

I accept and am satisfied that the changes the father needs to undertake and sustain cannot be made within the child's timescale, although I applaud the process that he is now undertaking.

I also accept that the adopter's hands should not be tied to that of a contact order by way of a post-placement order until the adoption order is made.

Contact, in my view, should not take precedence over the search for a successful placement with an adopted forever family and, therefore whilst contact should continue in line with the local authority's care plan, it should cease as outlined once the matching process has been successful so as to prevent any potential undermining of the ultimate placement.

I note that whilst the parents accept a care order that is on the basis of long-term foster care, they both oppose the placement order itself and this is a particular bearing insofar as the father is concerned, who still seeks to care for S, albeit not at the moment.

With regard to the public law working group's recommendations, they are very much a work in progress but it does not justify at this stage a U-turn in relation to established case law. Over the course of time, this may become more nuanced.

The public law working group's recommendations, if ultimately implemented, will require a change of mindset that needs to seep into the consciousness of the adoption process and those who put themselves forward to adopt. This will require a properly resourced and targeted training programme to be devised and implemented over a yet undefined period of time. Accordingly, on that basis, I am satisfied that S needs to be given the opportunity of a placement with an adoptive family.

I will therefore make a final care order, I will make a final placement order and I will dispense with the parents' consent. That is on the basis that the care plan will need to be amended to reflect the fact that this is a time-limited search of nine months only. The care plan will also need to reflect that S will need therapeutic parenting from carers who are trained as such or are willing to be trained as such. The care plan should not make any reference to the child having had inflicted physical abuse at the hands of the father as it is not part of the threshold and no findings have been made.

I also decline to make a contact order under section 26 as the father wishes me to do. Prior to the matching process, there needs to be a gradual reduction in contact for both parents to that of monthly, until such time as matching with an adoptive family takes place.

Of course, ultimately, if matching cannot take place, the plan of the local authority will be that of long-term foster care. At that point, the arrangements for contact will need to be considered. I accept that the contact arrangements should not be set at such a level as to destabilise the foster placement, but it should also not be a generic template. It should be tailored to the welfare of the individual child on a holistic analysis.

The guardian proposes. with long-term foster care, potentially three times per annum. I need to consider whether or not there should be a differential between the mother and father's contact in light that the father was ultimately the child's main carer.

The only comment I would make is this. it appears to me there needs to be a differential between father's contact and mother's contact. I make no further observations with regard to that, other than the fact that for the father, it may be suggested six times per annum, and the mother, three times per annum, but that is basically a suggestion/comment, but it needs to be subject to review and, of course, dependent upon the child's needs, the quality of that contact, and the impact of that contact on the placement itself. Subject to this, that is my judgment and the reasons for it.

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Birmingham City Council v NK & Ors [2024] EWFC 440 (B) (22 November 2024) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2024/440.html Cite as: [2024] EWFC 440 (B)

England and Wales Family Court Decisions (other Judges)

DISTRICT JUDGE PARKER

BIRMINGHAM CITY COUNCIL

(1) NK (2) DH (3) A CHILD BY THEIR CHILDREN'S GUARDIAN

JUDGMENT

(1) NK
(2) DH
(3) A CHILD BY THEIR CHILDREN'S GUARDIAN