News
London Borough of Barnet v DM, LT & TT (referred to as T, the child) 2025 EWFC 168.
MacDonald J considers the welfare test - To adopt or not to adopt - that is the question. With the added bonus of reference to many cases on welfare and adoption - a lawyers playground, one might respectfully say. As a preamble, such is the excellent legal content that I have had to recite direct portions of the judgement, which it is unfair to précis, but does add to the length of this article. There is another law, called Sod’s Law - there is more to a case than at first blush, meaning the article is longer than originally envisaged, and with an economy of judicial words, much of the judgement cannot be shortened. Anyhow, please read on:
T was born in July 2022, police exercised their powers of protection in respect of T on 22 December 2023. ICO January 2024,. T’s condition can only be described as shocking, poor little one. The judge took time in rehearsing the threshold allegations, (not repeated here) largely accepted by the parents, so threshold criteria met.
T has one sibling, R, who is placed in long term foster care in European country X, where both parents were from.
The main issue was which of the placement options before the court would meet T’s identified welfare needs, having regard to her best interests as the court’s paramount consideration.
Mothers position was that she could care for T in her home country with family assistance. F said he could care for T (with appropriate support). The LA wanted placement for adoption and the CG seemed to argue for an assessment of R’s foster parents[1] in country X[2], but then supported the LA. His Lordship recited the terms of s.31 of the 1989 Act, s.1 of the 1989 Act and s.1 of the 2002 Act saying the court is required to evaluate the proportionality of a care plan for adoption when it has before it an application for a placement order pursuant to s.21 of the 2002 Act, (see N (Refusal of Placement Order) [2023] EWCA Civ 364).
He reflected ‘Where the court was required to decide between two or more placement options for meeting T’s welfare needs, s the court must undertake a process of comparative welfare analysis of the competing placement options (see Re G (A Child) [2013] EWCA Civ 965 at [49]-[50] and Re B-S (Children) [2013] EWCA Civ 1146 at [44])’.
He judged it is necessary to undertake a holistic evaluation of T’s welfare needs and, thereafter, an analysis of each of the options available for meeting her identified welfare needs in order to decide which of the options best discharges the duty to afford paramount consideration to T’s welfare throughout her life, in a manner that is proportionate and compatible with the need to respect any Art 8 rights that are engaged (Re W (Adoption: Approach to Long-Term Welfare) [2017] 2 FLR 31).
He covered that there was no starting point of a presumption that the best arrangement for T is to be brought up by one or other of her parents, as this would be to assume the likely answer prior to undertaking the required balancing exercise (Re N (A Child) (Care Order: Welfare Evaluation) [2024] EWCA Civ 938).
He added full weight must be given to the importance of a family placement, unless it has been established that it would be so contrary to T's welfare that an alternative long-term placement is necessary (see Re M'P-P (Children) [2015] EWCA Civ 584). But that there is no presumption or right for a child to be brought up by a member of his or her natural family (see Re W (A Child) (Adoption: Grandparents Competing Claims) [2016] EWCA Civ 793).
He took into account that a sibling relationship is likely to be lifelong (see ABC v Principal Reporter and another [2020] UKSC 26).
He reminded himself that a care plan of adoption is an option of last resort, requiring a high degree of justification to be made only in exceptional circumstances where nothing else will do (Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075 and Re P (A Child) [2014] 1 FLR 824, CA). But later added ‘nothing else will do’ it is not a substitute for a proper welfare evaluation and proportionality check.
He continued, in order to make a care order with a care plan of adoption the order should be proportionate, bearing in mind the requirements of Art 8 and the relevant provisions of the UN Convention on the Rights of the Child.
Finally he stated ‘ … as made clear in Re G (A Child) [2013] EWCA Civ 965, [2014] 1 FLR 670, in deciding where T’s best interests lie in this case the court must undertake a careful and comprehensive two stage analysis, having regard to the matters set out in s.1 of the 1989 Act and s.1 of the 2002 Act:
- i) First, the court must undertake a global, holistic evaluation and analysis of T's welfare needs; and
- ii) Second, the court must undertake a comprehensive evaluation of each of the realistically available options for meeting T's identified welfare needs in the degree of detail necessary to analyse the option’s own internal positives and negatives in order to reach a decision as to which option is the most proportionate means of meeting those needs having regard to the duty to afford paramount consideration to T’s best interests’.
Given that both parents suffer from cognitive limitations the judge post-scripted ‘I have borne in mind the decision of the Court of Appeal in Re H (Parents with Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59, which made clear that with respect to a parent with learning difficulties, there is an obligation on the court to enquire as to what support is needed to enable parents with learning difficulties to show whether or not they can become good enough parents, that support for parents may have to be long-term extending through the child’s minority and the courts must scrutinise carefully evidence that the level of support required by the parent would be on a scale that would be adverse to the child’s welfare and should look for options to ameliorate the risk of harm that might result from a high level of support’.
His Lordships dicta/law on adoption
In Re T (Placement Order) [2008] EWCA Civ 248, [2008] 1 FLR 1721, the Court of Appeal held that uncertainty about the prospects of finding an adoptive placement does not in itself rule out the making of a placement order
For a child, especially a child of T’s age, a placement for adoption has considerable advantages. In D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948, Lord Justice Peter Jackson reiterated the following matters with respect to long term fostering as against adoption by reference to a number of earlier decisions set out in the local authority’s submission in that case, which apply with equal force in this case:
i). Long term foster care is a precarious legal framework for any child, and particularly a young child (Re LRP [2013] EWHC 3974 (Fam));
ii). Foster placements, long or short term, do not provide legal security. They can and often do come to an end and children in long term care may find themselves moved from one home to another (Re LRP);
iii). Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents (Re LRP);
iv). 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. A long term foster child cannot count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted (Re LRP);
v). The commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement (V (Children) [2013] EWCA Civ 913);
vi). Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to “feel” different from fostering (V (Children));
vii). The sense of belonging for an adopted child is not 'transactional' but arises from the mutual commitment between adoptive parents and children in those cases where adoption is appropriate (F-S (A child: Placement Order) [2021] EWCA Civ 1212);
viii). Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips) (V (Children));
ix). 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 (V (Children));
x). Prospective adopters are required to submit themselves to a rigorous and thorough assessment process over many months and can be confidently expected to provide extremely good parenting to any child who is matched with them in all areas of his or her development (Re LRP); and
xi). It is now well recognised that the traditional model of closed adoption without contact is not the only arrangement that meets the needs of certain adopted children (F-S (A child: Placement Order)).
The judge concluded adoption was in T’s best interests.
[1] The Court of Appeal recently observed in M (A Child) (Placement Order) [2025] EWCA Civ 214, that there are very considerable disadvantages to commencing an uncertain and potentially protracted assessment process in proceedings that have already been in train for over a year.
[2] This case is interesting as it looks at delay caused by trying to get information from a foreign country - to keep this article short, not included herein. I will add, I was in a case recently where a sibling was being cared for in Poland, but it was impossible to get an end date for when a fully informative carers report could be obtained re the siblings carers (red tape).
