The case of CV (A Child) concerned a 3-year-old girl, C, who required a particular level of care as a result of a number of medical conditions. A final order was made in care proceedings that C should be placed for adoption, however, at the time of the final order being made, C had been living with specialist foster carers for 2 years.
The Guardian in their final analysis explained that it would be best to keep C with her specialist foster carers if possible, however, the risks of long-term foster care led the Guardian to recommending a Placement Order on what was, on any reading, a difficult and finely balanced case.
The Judge appeared to agree with that, stating if she “had a magic wand” she would be keeping C where she was.
Despite that, the Judge did conclude that nothing else will do for C and authorised placement for adoption, however, urged the Local Authority to look at the possibility of the current carers becoming adopters for C.
The glaring issue with that ‘urge’ to the Local Authority of course is that it is not a decision for them, but for the foster carers, which would have significant financial implications, the court making that ‘urge’ in the absence of information about financial support that could be provided to the carers. It is an issue that the carers themselves had raised with the Local Authority that “without financial guarantees they could not commit to caring for C in the long-term” [31]. The Judge appeared to conclude therefore that long-term fostering with those carers was not a realistic option at that stage.
The Appeal
The Mother appealed the making of the Placement Order, relying on grounds that the Judge had wrongly concluded that “nothing else will do” when she did not have evidence that long term foster care with these specific carers was not a realistic option. Similarly, the Mother averred that the adoption was not proportionate or in C’s best interests in the absence of further information from the foster carers required to conduct that welfare analysis.
The question for the Court of Appeal was therefore whether or not the Judge at first instance had given proper consideration to the option of C remaining in long-term foster care with her specialist carers.
Lord Justice Baker set out the law to be applied in these circumstances of an application for a placement order, namely Re B (Care Proceedings: Appeal) [2013] UKSC 13, Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, and Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146. The approach set out in these cases was recently ratified in the Supreme Court decision of Re H-W (Children) [2022] UKSC 17, with Dame Keegan observing that:
“This is now rightly the accepted standard for the manner in which a contemplated child protection order must be tested against the requirement that it be necessary and proportionate”.
Counsel during the appeal hearing all confirmed that the realistic options for C’s care considered at the final hearing had been:
- Rehabilitation with Mother
- Adoption
- Long term foster care with Mr and Mrs D (C’s specialist carers).
The analysis of the Court of Appeal was that despite the Judge’s indication that if she had a magic wand, she would keep C with her current carers, and that she would come back to the benefits of C remaining with Mr and Mrs D, she in fact did not do so in her judgment [32].
The Judge outlined in her judgment that: “if no adoptive placement could be identified, the local authority should "move heaven and earth to keep her where she is".” [33]
Baker LJ therefore analysed that:
“In saying that, she seems to have thought that the possibility that C might stay with Mr and Mrs D was a realistic option as a contingency plan if no adoptive placement could be found within the timeframe proposed by the guardian and that the local authority should explore ways in which that might be achieved. If keeping C in her current placement was, in the guardian's phrase "right for her" and long-term fostering with the Ds was an option which was worth pursuing as a contingency plan, it is difficult to see why it was not a realistic option to be evaluated alongside adoption as the principal plan for the child's future” [33].
To complicate matters further at the appeal hearing, it was raised that, since the final hearing, Mr and Mrs D had shown a willingness to be considered as C’s adopters. Clearly, that new evidence was considered to meet the test set out in Ladd v Marshall [1954] 1 WLR 1489 in respect of fresh evidence being relied upon at the appeal hearing.
The Court of Appeal therefore considered emails from Mr and Mrs D setting out both that they were reconsidering their position in respect of adopting C, but also that they would “unquestionably look after C under a long term foster care arrangement” [38].
Baker LJ, in agreement with Carr LJ and Warby LJ, concluded that the appeal was made out on the first two grounds of appeal, namely that “the judge did not have sufficient evidence that long term foster care with the current carers was not a realistic option” [41].
The Placement Order was set aside, and the case remitted for a re-hearing on the basis that the evidence now available demonstrated that long-term foster care with Mr and Mrs D was a realistic option. The Court of Appeal however were clear that they were not outlining which option should be preferred.
Analysis
This case involved an incredibly difficult set of circumstances which required careful weighing up and consideration by all professionals involved. For Local Authorities (and other parties) dealing with similar situations, it is perhaps a reminder that all realistic options need to be presented to the court.
Many, if not all, professionals will acknowledge that long-term foster care is by no means a perfect outcome, particularly for a young child. There are risks, but in this case, clearly the option of long-term foster care was something not properly considered, with those risks being potentially mitigated by experienced and specialist carers with whom C was very settled.
