ADA (Children: Care and Placement Orders)

Factual and Procedural Background

The appeals concern care orders relating to four children: B (aged 14), C (aged 10), D (aged 2), and an older child A. The main issues at trial were whether B and C should return from foster care to their mother, and whether D should be placed with her aunt and uncle or placed for adoption. The mother appealed the orders concerning B, C, and D; B appealed the order concerning herself; and D's father appealed the orders concerning D.

The mother has a background marked by childhood abuse and trauma. She had relationships with the fathers of A, B, and C, none of whom actively participated in the proceedings. The family became involved with local authorities following allegations of abuse and domestic violence, leading to the removal of the children into foster care in early 2020.

The mother's younger half-sister (the aunt) and her husband (the uncle) were initially assessed positively for special guardianship of the three eldest children, but a later, more comprehensive assessment concluded negatively due to concerns about safeguarding and emotional needs, particularly regarding D.

The final hearing in early 2023 resulted in care orders for all four children and a placement order for D, with contact arrangements made between D and her siblings. The judge found that returning B and C to their mother was not in their best interests, but the care and placement orders for D were challenged on appeal due to insufficient focused attention on the adoption decision.

Legal Issues Presented

1. Whether it was appropriate to refuse the return of B and C to their mother's care in light of competing professional assessments and the children's wishes.
2. Whether the care and placement orders for D were justified, particularly regarding the necessity and proportionality of adoption as a placement option.
3. Whether the judge adequately addressed the risks and benefits of placing D with her aunt and uncle, including the consideration of mitigating measures to manage potential harm.

Arguments of the Parties

Mother's Arguments

• The judge erred by insufficiently analysing the benefits of returning B and C to her care, especially in light of a positive culturally-informed parenting assessment.
• The judge gave excessive weight to the local authority and guardian's view that the mother could not care for the children without full acceptance of the court's findings.
• The care and placement orders for D were disproportionate to the risk of harm and premature, as 'nothing else will do' was not established.

B's Arguments

• The judge failed to properly consider B's competency to instruct her own lawyers and did not adequately weigh her wishes to return home.
• The judge did not properly assess the risk of harm to B upon return to her mother.

D's Father's Arguments

• Mirroring the mother's grounds, he contended that the care and placement orders for D were not proportionate and that alternative family placements should have been more thoroughly considered.

Table of Precedents Cited

Court's Reasoning and Analysis

The court distinguished between the appeals concerning B and C and those concerning D. Regarding B and C, the judge had to choose between conflicting professional assessments: a culturally-informed parenting assessment favoring return to the mother, and a longer-term social worker's assessment emphasizing ongoing risk. The court found the judge was entitled to favor the social worker's evidence, particularly given concerns about the mother's partial acceptance of abuse findings and the risk of ongoing harm. The judge had met the children and was aware of their wishes and the difficulties of foster care, and her balancing of these factors was supported.

In relation to D, the court found the judge's analysis insufficiently focused. The judge failed to rigorously evaluate the nature and likelihood of risks arising from placement with the aunt and uncle, the consequences of such risks, and the availability of mitigating measures. The judge's observations about collusion, fear-based parenting, and the aunt's motivations were not fully explained or resolved, despite being contested. The late change in care plans and lack of specific professional assessment of the aunt and uncle caring for D alone further complicated the decision. The court emphasized that decisions leading to adoption require a thorough and transparent evaluation of all realistic placement options and their comparative advantages and disadvantages.

The court also noted that the judge's failure to address the detailed risk assessment questions from established precedents undermined the reasoning behind the placement and adoption orders for D.

Holding and Implications

The court DISMISSED the appeals concerning B and C, upholding the care orders that prevent their return to their mother's care at this time.

The court ALLOWED the appeals concerning D, set aside the care and placement orders in her case, substituted an interim care order, and remitted the matter for rehearing with directions for early listing before the Family Division Liaison Judge.

The decision affirms the necessity of a detailed, rigorous analysis before making adoption orders, especially when family placements are a realistic alternative. It underscores the importance of transparent reasoning addressing all relevant risks and mitigating factors. No new precedent was established; the ruling reaffirms existing principles governing care and placement orders and the assessment of adoption suitability.