Cambridge Family Law Practice

The mother of a disabled three-year-old has successfully appealed against an adoption order.

The toddler, referred in the Court of Appeal judgement as to as ‘C’, spent the first 16 months of her life in hospital due to multiple health conditions, and was then sent to live with specialist foster carers. The little girl’s care needs were such that both foster parents had to work part-time to ensure one was always on hand to look after her.

The couple, called ‘Mr and Mrs D’ in the judgement, announced that they would be interested in adopting C, but only if they received significant levels of financial support from their local authority. The council was reluctant to agree to this.

C’s unmarried parents have been in a lengthy relationship but they did not live together. The little girl’s older siblings had all been taken into care. The local authority wanted C to follow them and so applied for a care order, along with a placement order that would make her available for adoption.

C’s parents opposed this, arguing that she should be returned to them, or failing that, left with Mr and Mrs D. The toddler’s legal guardian also believed a long-term placement with the couple would be in her best interests and the least disruptive option. But the detailed planning required to support C remaining with Mr and Mrs D was outside her remit, so she supported a care order as the next best option – but still argued that for a short-term, six -month placement in care, leaving the door open for an eventual return to Mr and Mrs D.

The care and placement orders were granted primarily due to financial concerns, but Judge Gargan did so reluctantly, saying:

“If I were satisfied that C could not return to her parents, and I had a magic wand, I would be waving it incredibly hard to have this little girl stay where she is.”

The Judge continued:

“She would remain in a settled family home that she regards as her family. Her medical needs would all be met. She would have no disruption of her medical care. She would have a progression into the school she currently thinks she is going to in September, which is just up the road. In addition, most significantly, she would continue in some form or other to have contact with her birth family. However, I do not have a magic wand, and for all the efforts of the parents themselves, for whom the foster carers are a backup plan, and the Guardian, and even the aunts who now support them, I cannot make it happen.”

In the Court of Appeal, the mother’s legal team argued that Judge Gargan had not given proper consideration to the possibility of C remaining with her foster carers.

Lord Justice Baker agreed, saying the financial barriers highlighted by the previous Judge were not as set in stone as she had suggested.

“…Mr and Mrs D and the local authority had not reached an agreement about the level of financial support that would be provided to them were C remain in their care whether as long-term foster carers, special guardians or adopters. At that point, Mr and Mrs D were apparently saying that without financial guarantees they could not commit to caring for C in the long term…In those circumstances, even though the social worker had described the option of C staying with them was “viable”, the judge seems to have concluded that long-term fostering with the Ds was not a realistic option at that stage.”

The Lord Justice continued:

“[Judge Gargan] never analysed the advantages and disadvantages of the placement continuing, as she would have had to do if she regarded it as a realistic option. Instead, having concluded that the child could not be rehabilitated with the mother, the judge seems to have concluded that the realistic options were either (a) long-term foster care with different carers or (b) adoption with carers who may or may not be Mr and Mrs D.”

Judge Gargan had not carried out a sufficiently rigorous “balancing exercise”, the Appeal Court judge concluded.

“Given the lifelong consequences of decisions at the end of care proceedings, it is essential that the evaluation of the realistic options is fully explained in a judgment that may be read and understood by everyone involved, including at a later date the child herself.”

Consequently, Judge Gargan had been wrong to conclude that adoption was the only option for C. She did not have sufficient evidence to rule out continuing care by Mr and Mrs D.

The case was sent back to the lower courts for a fresh hearing before a different judge.

Read the judgement here.