The matter of T & R Re (Refusal of Placement Order)  EWCA Civ 71 (28 January 2021) involved an appeal by a local authority and children’s guardian against a decision to refuse to approve placement orders in respect of two children, T (a 3 year old boy) and R (a 2 year old girl). The appeal was dismissed.
The factors which tipped the balance against adoption was the the close relationship between T and R and their older sisters along with the family’s strong cultural heritage. T and R had four older sisters, aged 7, 6, 5 and 4 at the time of the appeal hearing. Their mother and father are both from traveller backgrounds.
The local authority had concerns about inappropriate accommodation and one of the older children (C) was underweight, developmentally delayed, found to have sustained two metaphyseal fractures, and was malnourished and neglected.
In October 2018 the court made interim care orders in respect of all the children. The children were placed in three separate foster placements. T and R were placed together.
The court held a fact-finding hearing in respect of the concerns being raised by the local authority. After the fact-finding hearing, the court ordered expert reports from psychologists and an independent social worker. The psychologists concluded that the parents both had considerable cognitive difficulties which restricted their ability to meet the children’s needs. They described the parents as strongly identified with traveller culture and the older children had a strong sense of identity and loyalty to their parents, however the children did not feel safe in their care and there was no prospect of the parents acquiring the insight and skills needed to look after the children safely within reasonable timescales, if at all.
In their evidence, the parents stressed the fundamental importance they attached to their culture and put forward a case that the children should be returned to their care.
HHJ Richards’ decision was handed down on 28 August 2020. His order was to approve the plan for the older children, but he declined to endorse the plan in respect to T and R and invited the local authority to reconsider the plan, with a view to the children remaining in long-term foster care, like their siblings.
The local authority and the children’s guardian did not agree with the decision and asked for permission to appeal against the dismissal of the placement order applications. The judge refused the applications and directed that the children should remain in the interim care of the local authority, pending any further application for permission to appeal.
Permission to appeal was granted on 2 November 2020 and it was listed for an appeal hearing on 9 December 2020. At the time of the appeal, T and R were still living together in the same foster placement and they had formed close attachments with their carers.
The appeal – decision
The appeal was heard by the Court of Appeal and the main judgment was from Lord Justice Baker. Lord Justice Baker acknowledged that HHJ Richards had reached a different conclusion to the professional and expert witnesses and concluded “In my view, he was entitled to reach that conclusion and his exposition of his reasons was clear and convincing.” He considered that HHJ Richards had provided clear and coherent reasons for his decision, including, as case law requires, his reasons for departing from the recommendation of the children’s guardian. Therefore, the court declined to interfere with the decision and the appeal was dismissed.
[…] I consider that the judge’s conclusion as to the difficulty in guaranteeing that post-adoption contact would take place was one he was entitled to reach in the circumstances of this case. There was plainly a risk that sibling contact would not take place after adoption. Given the fundamental importance attached to such contact by Dr. Hunnisett and the other professional witnesses, the judge was entitled to conclude in the interests of T and R that the risk was one which should not be taken.
In addition, the judge attached importance to continuing contact between T and R and their parents. One of his reasons for doing so was his conclusion that contact represented the best prospect of maintaining and nurturing the children’s understanding of their cultural history and of their place in the world. His findings that T and R had a strong and real sense of belonging to this family and as to the central importance of their cultural heritage to all of the children, including the younger two, were plainly open to him on the evidence. He reached the view that it would be difficult for the children to retain sufficient awareness of their heritage in an adoptive placement, in part (but not only) because of the strong opposition to adoption within the traveller community.– Lord Justice Baker
This matter highlights the importance of carrying out a thorough analysis in respect of each of the permanency options. For T and R, the benefits of adoption were outweighed by the risks specific to them, particularly their need to maintain a relationship with their family and to ensure that their culture and heritage was not lost.
Read the full judgement at source: T and R, Re (Refusal of Placement Order)  EWCA Civ 71 (28 January 2021).