S-F (A Child)

Judgment Approved

Sir Ernest Ryder, Senior President:

On 16 December 2016 His Honour Judge Rutherford sitting in the family court in Bristol made a care order in respect of a four year old boy and refused the local authority’s application for a placement order under the Adoption and Children Act 2002. The consequence is that the child has been removed from the care of his parents and placed with his respite carer who the court was told is available and able to be his long term foster carer. He is having limited direct contact with his parents. With the leave of the single judge, the local authority appeal the court’s decision to refuse to make a placement order. They are supported by the children’s guardian on behalf of the child. The parents oppose the appeal.

The appeal raises no new issue of law or principle. As will become clear, if my Lady and my Lord agree, I would dismiss the appeal. A preliminary observation was made in open court by all of the judges of this court that I wish to repeat. It should no longer be necessary for this court to remind legal representatives that they have a duty (including where appropriate to the legal aid agency) to consider whether each party needs to be separately represented on an appeal. In this appeal, the local authority and the children’s guardian had an identity of interest, as did the mother and the father, but legal costs have not been incurred because of an appropriate decision made by counsel not to claim their fees.

The issue in the appeal is clear and simple. Was the judge wrong to prefer long term fostering to adoption? There were three realistic options before the court about which the court heard evidence at the contested hearing. They were continued care of the child by his parents (with or without a statutory order), long term fostering with his existing respite carer or adoption. The child’s need for direct contact with his parents was relevant to the options that had in their contemplation the long term separation of the child from them.

The decision to make a care order was based upon the court’s conclusion that the child needs better than average care and his parents are unable to provide that care. That decision and the reasoning that underpins it is not in issue in this appeal. Long term fostering was not the local authority’s first choice and on their case would only be appropriate if a search for adoptive carers was unsuccessful. The local authority proposed to undertake that search over a