New Court Chambers

Re C (A Child) (Adoption by Foster Carers) [2024 ] EWFC 87 – Non-Agency Adoption Order and Post-Adoption Contact Application

Mr Richard Harrison KC (sitting as a Deputy High Court Judge)

Dinali Nanayakkara acting for the Local Authority, Emma Vincent acting for the prospective adopters, George Lafazanides acting for the Children’s Guardian.

Background

The child (‘C’) had been the subject of care proceedings which concluded in March 2022. The local authority had sought care and placement orders.

C has complex medical needs and requires specialist care for her serious medical conditions, which includes the administration of medication throughout the day.

After spending the first 16 months of her life in hospital, C moved into the care of the prospective adopters (‘Mr and Mrs D’), who were specialist foster carers.

Throughout the previous care proceedings, C remained living with the prospective adopters and their children. However, due to issues regarding long-term funding arrangements, the local authority did not seek to place C with the prospective adopters following final orders.

At the end of those proceedings, the court granted the local authority’s application and directed final care and placement orders. C’s birth mother subsequently appealed the placement order, which the Court of Appeal allowed; handing down judgment on 9 July 2022.

The case was remitted to reconsider the local authority’s application for a placement order. However, by the time the final hearing was listed before Mr Richard Harrison KC, the local authority was no longer pursuing its application for a placement order. Rather, the primary application was for a non-agency adoption order, sought by Mr and Mrs D; supported by the local authority and the children’s guardian.

The child’s birth parents opposed the making of an adoption order. Although the parents supportedC, now aged 5, remaining in the care of the prospective adopters, they sought for the legal order to be either a long-term foster care arrangement or a special guardianship order.

Legal Framework

As there was agreement between the parties that Mr and Mrs D should continue to care for C, the primary issue for the court to determine was the appropriate legal structure under which C’s home with Mr and Mrs D should be underpinned. The Judge therefore considered the following proposals put forward by the parties, regarding the different legal frameworks for C’s placement with her adopters:

1. As C was already subject to a final care order from the previous proceedings, the parents sought for C to remain with Mr and Mrs D under a long-term foster care arrangement, with the local authority and parents sharing parental responsibility (‘PR’), to the exclusion of the adopters [34-36]
2. It was proposed on behalf of C’s birth father that C could remain subject to the final care order, with the court also making a special guardianship order. This would enable Mr and Mrs D, the birth parents, and  the  local  authority  to  share PR, though the local authority would continue to have overriding power. [152]
3. An alternative sought by the birth parents was that C be made subject to a special guardianship order, with the birth parents and Mr and Mrs D sharing PR, though Mr and Mrs D would have enhanced PR [37-39] It was also raised on behalf of C’s birth mother that the court could combine a special guardianship order with a family assistance order or a supervision order. [148]
4. The order sought by Mr and Mrs D, supported by the local authority and the Guardian, was that the court make an adoption order in favour of Mr and Mrs D, severing C’s legal ties with her birth family [40-58]

If the court granted the adoption order, C’s birth parents sought an order for post-adoption contact, providing for direct contact up to six times a year. [59-65]

Alternatively, if the Judge refused the adoption order application, the birth parents were willing to agree to the court making an order under section 91(14) of the Children Act 1989 for a period of two years; preventing the birth parents from making a further application during that period withoutthe permission of the court.

Discussion

When considering the options before the court, the Judge had at the forefront of his mind C’s medical conditions, and the fact that they make her extremely vulnerable to stress, to the extent that it can be life- threatening. The court noted the Guardian’s view that because of C’s complex needs, C is a child who requires more than ‘good enough’ parenting. [13] The Judge considered that the quality of parenting Mr and Mrs D have provided to C was exceptional.

Further, due to the time in which C has been in Mr and Mrs D’s care, the Judge acknowledged that C had come to view them  as  her  parents,  and  Mr and Mrs D’s biological children as her brothers, and their wider family as her wider family. The court recognised that the only home C has ever known is with Mr and Mrs D, and C’s needs could only adequately be met by C continuing to live with Mr and Mrs D.

In weighing-up the options and considering the highly fractious relationship between the birth parents, the local authority, and the prospective adopters, the court determined that:

1. If C were to live with Mr and Mrs D under a long-term foster care arrangement, although C would have the benefit of enhanced support from the local authority, it would mean C was living in a home in which her primary carers lacked PR for her. Further, C’s different status within the household would be apparent to her and likely undermine her place in the family and her sense of security. [151]
2. The court acknowledged that a special guardianship order would carry many of the advantages of adoption, conferring enhanced parental responsibility to her carers, and requiring the leave of the court to make an application to discharge such an order. However, the level of support currently in place would reduce and Mr and Mrs D would be left to deal with the birth parents directly, which the court considered justifiably filled them with apprehension.The  Judge determined that under a special guardianship order, C’s birth mother would likely continue to criticise the carers and continue to undermine C’s placement with them, jeopardising C’s stability. [147]
3. Regarding an adoption order, the court considered the key advantage would be to cement C’s place within the family that she already believes to be her own. It would also align C legally with the reality of her world as she perceives it, while conferring upon Mr and Mrs D the freedom to act as C’s parents.

Decision

Having heard all the evidence and submissions on behalf of the parties, Mr Richard Harrison KC concluded that:

I do consider that C’s medical needs place this case in the category of the wholly exceptional. It is an unusual case where no order other than adoption will do for C. With regret, as I acknowledge the love and commitment which the parents have shown for C, I am driven to the conclusion that C’s interests require me to dispense with their consent and to make an adoption order. It is a proportionate response in the light of C’s particular needs. [156]

The court therefore granted Mr and Mrs D’s application for an adoption order and declined to make a post-adoption contact order as sought by the birth parents.