A Local Authority v The Mother & Ors

Mr Justice Williams Introduction

1. This is my judgment in relation to the local authority’s application for care and placement orders in relation to 2 children, D (aged 5) and E (aged 3). The local authority issued applications for care orders in respect of five children of the family. I made final care orders for three elder siblings A, B and C on 12 July 2024. On 28 July 2023 I gave judgment following a fact-finding hearing in which I found as follows i) No findings are made in relation to contamination of C’s VPS or EVD systems. In relation to the allegations of deliberate contamination of the VPS shunt that is a consequence of the Local Authority not pursuing such an allegation. In relation to the pursued allegation of reckless or negligent contamination of the EVD shunt in January 2022 I have concluded that the local authority have not established the allegation on the balance of probabilities but moreover that the evidence established that it was more likely a product of environmental contamination. ii) In Relation to the puncturing of the EVD line on 3 July 2022 I find that it was a deliberate act by the mother, probably motivated by frustration at how the hospital had responded to the CSF leak that occurred in the late evening of 2 July 2022. It was reckless as to the possible harm that may have occurred from the introduction of a further infection but was not undertaken with the intent so to do. iii) I conclude that all of the children were subject to physical and emotional abuse at the hands of both parents. This was particularly focused on A and B with C, D and E being infrequent targets. This was substantially beyond that which the parents admit much closer to the characterisation depicted by the boys in their accounts. iv) For significant periods of time the children’s emotional needs were neglected in particular those of A and B with infrequent occasions when their physical needs were also neglected. v) The physical and emotional abuse and neglect were a product of the mother and fathers’ psychological or emotional qualities which made them unable to cope with the demands of parenthood, in particular parenting five children including one with a disability , where they were unable to acquire and maintain the skills needed to parent demanding children where their history of dishonesty was such that they were unable to engage appropriately with services provided for them. vi) The parents history of dishonesty in engagement with professionals and with authority including the court and their inability to make use of social services support that has been available to them together with their poor choices and what would appear to be very deep-seated psychologically emotional ways of operating do not paint a hopeful picture for the future. Further consideration will need to be given as to any further assessments of the mother and father before final decisions can be reached for these children. As matters currently stand it seems almost inconceivable that the parents could resume care of all five of the children. Whether they can resume care any of them will be the subject of further assessment.

2. Following that assessments were carried out of the parents and the children and the matter was listed for final hearing in July 2024. On that date the proceedings concluded in respect of the three elder siblings – mother and father accepting the outcome of the assessments that they could not resume care of the three older children. Final care orders with plans for long-term foster care were made in respect of the children who at that stage were then 9, 8 and 6.5. As a result of the late emergence of the paternal grandparents as potential special guardians for D and E and at the urging of all parties, including the Local Authority and the Guardian I reluctantly agreed to adjourn the decision in respect of them to enable the paternal grandparents to be assessed. I mention the Local Authority and Guardian support for this course of action in particular because it is suggested now that they have a preconceived preference for adoption for D and E. As I feared the paternal grandparents’ commitment to being assessed rapidly fell away and they dropped out of the assessment finally within 4 weeks. The earliest reconvened hearing that could be secured was 27 November 2024 a further delay of 4 months for children aged only two and four being a very significant period of time.

3. Prior to the emergence of the paternal grandparents and for several weeks after their abandonment of the assessment the mother’s position was that she sought to resume the care of D and E. Although she had not accepted the entirety of the findings I had made, she had embarked on therapy and maintained that she had made sufficient progress to be in a position to resume the care of the two youngest children. The father supported her case. By this time the parents had separated. Part of the reasons given for the paternal grandparents’ abandonment of their assessment was that the father had been arrested in relation to an allegation of rape of a 16 year old. Although he denied committing any criminal offence he accepted that he had embarked on a relationship with a 16 year old girl; the age difference being around 19 years. At the same time as asserting that she was now an appropriate carer for the two youngest children, the mother embarked on a relationship with a registered child sex offender. When this was brought to her attention when he was recalled to prison on 18 July 2024 and by the police on 7 and 29 August 2024 she continued to pursue the relationship although true to her previous dishonest form she did not disclose this relationship saying in her statement of 23 September 2024 that “I hope the court will allow me to prove the changes I have made and am committed to continue making as a sole carer, and I hope that I’m given the chance I’ve been fighting for throughout the proceedings”. It transpired when the police provided further information that the mother’s boyfriend was also subjected to pending matters a trial for a historical rape of his brother and an investigation of rape and sexual activity with another female child . That she should continue to seek the return of her children whilst engaged in a relationship with a man who posed a clear and present danger to any child in her care is one might say extraordinary and demonstrates how very far short of being in a position to resume care of any child she is. This is relevant to the issue of the placement of D and E because if there were some realistic prospect of the mother moving into a position where she might resume their care in the foreseeable future it would be a relevant consideration as to the choice which now court has to make.

4. The local authority seeks care and placement orders in respect of both D and E. Although D is nearly 5 the view of the family finding team is that there is a good chance that they could be found an adoptive family within the next six months; neither child has any physical or psychological/psychiatric diagnosis and are regarded as being on the more likely to place end of the spectrum. The Guardian aligns herself with the local authority’s position and in particular emphasises the need that D in particular has for a permanent home through his minority. The mother and the father accept that care orders must be made as neither of them are in a position to put themselves forward as carers for D and E but they submit that the court should decline to make the placement orders on the basis that long-term foster care would promote the children’s welfare in a more rounded way in particular in that it would provide an appropriate degree of permanence whilst permitting the children to maintain more meaningful relationships with their siblings and with their parents.

5. A significant amount of the evidence that has been compiled since the fact finding hearing is now of limited relevance given the position adopted by the mother and the father. The central issue in the case now is whether it is in the children’s best interests to be adopted or whether their best future lies in long-term foster care. In preparation for this hearing each of the parties provided me with a position statement. In addition I have read or partially read the following documents: i) Reports and Addendums of Dr Willemsen: 14.12.23 E537-E587, 15.02.24 E568-E594, 21.11.24 E711-E716 ii) Local Authority Statements : Final evidence (prepared for July final hearing) 09.05.24 C273-C339, Statement from family finding 20.06.24 C367-C375, Updating Final Statement (Social Work Manager) 04.09.24 C382-C396 , Updated Final Care Plans for D and E09.09.24D137-D151,D 09.09.24 D152-157 iii) Evidence of Mother: Final statement (prepared for July final hearing) 30.05.24 C340-C350, Final Statement 23.09.24 C382-C396, Addendum Final Statement 15.10.24 C409-C411 iv) Evidence of Father : Final Statement (prepared for July final hearing) 06.06.24 C351-C386 , Final Statement 08.10.24 C401-C408 v) Guardian’s final analysis 05.07.24 E650-E692 vi) Statement of a Police Officer 04.11.24 C412-C414 It was unfortunate that some of the evidence had not been updated since July, in particular the update on family finding evidence was relayed by the Social Work Manager in her oral evidence, as was the Guardian’s update. Given the quite significant developments since July and having regard to the fact that the Guardian had been the primary driver of the assessment of the paternal grandparents this was an omission. However I accept that the Guardian, like so many other guardians and social workers up and down the country, have caseloads which are not consistent with undertaking all that might be hoped for particularly in relation to updates after ‘false dawn’ adjournments.

6. I heard oral evidence from the Social Work Manager and the Guardian. The parents chose not to give evidence and no one sought to ask questions of them.

7. I heard oral closing submissions on behalf of the local authority, the mother and the children’s Guardian. The father made written submissions.

8. In the references to the evidence and submissions which follows I cannot hope to do other than make brief reference to what seem to me to be the most critical components in the written and oral evidence and to the essential points made in support of the parties’ positions. Parties’ Positions

9. In support of the local authority’s position Ms Little made the following essential points i) the local authority has undertaken a careful scrutiny of and carried out a holistic evaluation of the only two realistic options. The permanence that adoption offers (in all its forms) will best meet the children’s needs throughout their lives. If the court accepts that their welfare requires adoption then the court will also be satisfied that it should dispense with the consent of the mother and the father. ii) Long-term foster placements are difficult to find and would require D and E to live in a foster family for 13 and 15 years respectively. Finding long-term foster placements is difficult; there is a scarcity of them and the feedback from fostering teams is that they struggle to find such placements. An example is that A and B have not got long-term placements yet despite this being the plan for them for many months. Long-term foster placements are more likely to break down and there are many more reasons why they may break down which are not linked to the behaviours of the child but arise from changes in the foster carers’ lives. iii) Long-term foster care is distinctly different from adoption both in its legal implications but also in how it operates. The child remains a looked after child, the local authority remains the corporate holder of parental responsibility, the foster carers fall to be re-approved annually and this will have an impact on the children’s sense of belonging. iv) The evidence in relation to D from his foster carers, the social worker and the Guardian is compelling that he craves a home where he can belong and which he knows is his for ever. E needs a forever family. He is attached to his foster carers who have managed to stabilise him and it is likely that he will be able to settle in an adoptive placement. v) The local authority recognises the strength and nature of D and E’s relationships with their siblings and with their parents. The local authority will seek an adoptive placement which will permit the children to maintain their relationships with their siblings and if possible with their parents. However if adopters who are open to contact cannot be found the children’s need for permanency and the benefits to them of a permanent home will outweigh the harm that would be caused by the curtailment or even ending of their relationship with their siblings and their parents. vi) The current contact arrangements provide for once monthly contact and whilst this is important, even if contact continued at that level, it is not a substitute for the sense of belonging that being adopted will give the children. vii) The research papers that are relied upon by the mother were produced overnight and were not put to the social worker or to the Guardian and the court should not be relying on them. The suggestion that adoption is as likely to break down as foster care is not accepted. viii) The social worker has been involved with the group of siblings since the commencement of the proceedings. The Guardian has been on board for a year or more. Their analysis is a sound one and they are professionals who can be trusted. The agency decision maker has also reached the same decision and the criticisms of the ADM are not accepted. ix) Whilst the local authority recognises the importance of the family relationships of D and E the court should not make an order which is to blunt a tool at this stage and involves an imposition on the prospective adopters rather than allowing a discussion. If the court reserves the adoption to itself the court could then consider whether an adoption contact order was required to promote the children’s welfare.

10. On behalf of the mother Miss Haider-Shah made powerful oral submissions. Overnight – and to be fair in response to my questioning what the latest research showed – she sent me links to various pieces of research concerning outcomes in adoption which I am afraid I have not been able to digest and which were not put to the witnesses. I am hesitant to place too much reliance on them although they are interesting. i) there are national shortages of prospective adopters and foster carers and so the shortage of long-term foster carers does not provide a distinction. ii) The local authority and the Guardian and the ADM have started with an inherent bias towards adoption in preference to long-term foster care. Nothing in the statutes or case law prioritises adoption over long-term foster care. None of those professionals have carried out the tailored holistic and comparative side-by-side evaluation of the two realistic options. The children have not been considered as individuals and they have not been considered as part of their sibling group. The analysis is therefore fundamentally flawed and cannot be relied upon iii) in particular they have not considered the likely effect on D and E throughout their lives of having ceased to be a member of the family and of becoming an adopted person. The loss of their family will be akin to a bereavement as was accepted in the evidence. At his age and with his knowledge of his family D will struggle to integrate into a new family and accept it; he will be expected to erase his previous family from his mind. iv) Nor did the lead professionals properly consider the nature and strength of the relationship which D and E have with their family, the likelihood of that relationship continuing and the value to D and E of its doing so and the wishes and feelings of the mother father and their siblings. v) Emotional and psychological permanence can be achieved in long-term foster care – adoption is not a panacea. 12 to 15 years in foster care can provide permanence whilst maintaining their sense of identity and their links to the family. Adoption means up to 90 years in a new identity. vi) The proportionate response to the specific factors in this case means that the court cannot conclude that adoption is required and that nothing else will do. vii) The research drawn from Official Statistics, Coram/Baaf and others shows a) There are currently 2,030 children waiting to be adopted in England and 890 of those are in a family group. 520 children who are part of a sibling group have been waiting for 18 months or more to find a home.  b) Trying to draw comparisons between adoption breakdown rates and long-term foster care rates is difficult as different factors are in play. It is not a simple comparison. viii) A critical issue for the evaluation is that the risk to these children, in particular having regard to D, of adoption not succeeding is a higher one than would be the case in long-term foster care. a) There would be a more rigorous matching process to find suitable long-term foster carers for D in comparison to adoption. Long-term foster carers would have a better understanding of D and E’s needs. b) If D and E’s needs escalate in a significant way there is a higher risk of adoption breaking down because it does not have the supportive framework around it which long-term fostering does where therapeutic and other support would be quickly available which it would not in an adoptive placement. c) If their needs escalate to such an extent that the long term placement becomes inappropriate then it can and should change. The same would be true of an adoptive placement which if it cannot meet the children’s needs should change and indeed the prospective adopters might send the children back to the local authority. d) They will be subject to statutory visits but this will not harm their development to the extent that loss of the family relationships would. e) Any delay in making a match will not cause further harm as they are settled in their current placement and further support can be provided.. There is a material difference between delay in seeking a long-term foster home and delay in seeking adoption. The children will experience delay in adoption as far more harmful as it amounts to a more significant rejection. They should remain in their current placement as long as it takes to find long-term foster carers. ix) Adoption presents a greater risk to these children a) There is a risk no placement will be found: sibling groups on average wait 18 months and the average wait from placement to adoption is 304 days. The LA and Guardian suggestion that a placement is likely to be found within 6 months is unrealistic and would mean the children might be waiting until they were four and six before a change of tack occurred. By that time their relationship with the foster carers and their family will be even more stable. In essence the court is being asked to take a punt. b) Delay waiting for adoption creates immense harm for the children as they feel a growing sense of rejection c) even if a match is found it is more likely than not that the adoptive placement will break down because D is so attached to his current family that it is likely that he will not disengage from his roots and will not settle in an adoptive family. This will become an increasing risk in adolescence and as a teenager. d) It is unlikely that he will ever see himself as an adoptive person and will feel grief at not belonging to his birth family. This will be akin to a bereavement particularly if they only get a letter once a year e) in an adopted family there is a real risk that the children will not be supported in having contact with their siblings or their parents. The research shows that letterbox contact often fades away. x) there are clear benefits of being in a long-term foster placement a) he will be able to maintain his relationship with his family, his siblings and his parents and perhaps beyond. Foster carers will be under an obligation to maintain this in a way that prospective adopters would not be. b) They will have well-trained carers who will provide a safe environment c) they will have the support of the local authority for any needs as they emerge; for D this would include behavioural issues but E may also have issues as she grows older. xi) If the court concludes that placement orders should be made the court should consider its powers in relation to contact and make an order for it. The recent authorities support the obligation on the court to consider contact and affirmed the fact that the court is best placed to consider what template should be put in place for contact for adopted children.

11. Ms Mettam on behalf of the father makes the following essential submissions in support of his case: that the court should make final care orders based upon a care plan of placement in long-term foster-care and his contention that it cannot properly be said that ‘nothing else will do’ for the children in their particular circumstances. Her written submissions contain a detailed review of research, speeches and cases which bear upon the issue of how contact with adopted children is being seen to develop in social work and legal practice. In the time that has been available in this case it has not been possible to consider it in the detail which I might have liked although in terms of the principles which guide my decision the law itself is not contentious and I have made reference to this in the ‘Legal Framework’ section of this judgment. i) Long-term foster care and adoption do not compete alongside one another on a simple application of the welfare checklists; the court must adopt the least interventionist order consistent with welfare. ii) Being a Draconian intervention in the article 8 rights of the children and the parties the court must undertake the stringent and demanding processes spelled-out in the authorities. iii) The court has inadequate reasoning both orally and in writing from the two professional parties to justify the making of placement orders. The Guardian’s evidence that it would be possible that D would settle in an adoptive placement is an insufficient basis for recommending adoption. The professionals’ view that D being claimed by a new family might solve his anxiety could in fact very easily be the cause of significant harm to D and E if they cannot let go of their current family. The Guardian has not seen the children for six months and did not analyse the option of long-term foster carer at all in her final analysis. She has not observed a single contact. Given she was concerned six months ago about the importance of the maintaining their bonds if they were adopted and was concerned that D would be approaching five she has not provided any updated evaluation of whether long-term foster care now represents a viable option for the children. iv) With the ADM there is a paucity of analysis and application of the wrong legal test. The ADM does not appear to have considered long-term foster care at all and approved adoption for generic rather than child specific reasons. v) The children cannot be separated; that is agreed by all the professionals. vi) At D’s age a common difficulty encountered in adoptive placements is the ability of the child to settle because they have a strong sense of family and identity and know their place within their family and their sibling group. Adoption for children over five is not any panacea. vii) It is wholly unrealistic to expect D to integrate into a new set of parents and extended family and to no longer call himself D. He wants to live with his siblings and places this at the highest level of importance and he rates playing with his mummy and daddy and living with them at a similar level. Given he tends to worry a lot and in the guardian’s view is developed beyond his age adoption is not a realistic option.– the Sibling Assessment contains similar comments by B [F439] viii) It will be far more harmful to D for him to be adopted and for that then not to work out. This would be devastating. The impact would be far less if he were in a long-term foster placement which broke down. Placement breakdown is more probable the higher the age of the child and adoptive parents may reject a child. Children also move under the matching process and that can fail. This also would be harmful for D. ix) The available research suggests that whilst there is a difference in the objective stability of adoption and long-term foster care the difference is not as great as might be imagined. (87% LTF/98% adoption); (72%/87% stable after 3 years); Age 3-5 4.7% adoption disruption rate – 6-8 years 10.4% disruption rate) x) Long-term foster care is recognised within the statutory framework as a permanency option. The regulations have been changed to minimise the intrusion into a child’s life that being a looked after child involves. The regulatory framework is therefore much more light touch whilst still providing the support for foster carers which comes with that status. Long-term foster carers have to commit to looking after the child for their minority – until they cease to be a looked after child. xi) Those changes mean that the court should accept that long term fostering is a permanent option available for the children and can in the correct situation bring about permanence of the kind that both the social worker and the Guardian have advocated that D and E require. xii) The optimism of the family Finder is misplaced. If the average waiting time for a sibling group for adoption is 18 months – and that includes children of all ages not just those with a sibling over five- to say that they would expect to find a placement within six months is unrealistic. The statistics show a) 882 – the average number of days between a child entering care and moving in with its adoptive family during the year 2022-23. b) 304 – the average number of days between an LA receiving court authority to place a child and the LA deciding on a match to an adoptive family during the year 2022-23. xiii) The Father invites the Court to refuse to make placement orders and to seek for the Local Authority to change its care plan for E and D to one of care orders, placement in long-term foster-care. xiv) In the event the Court, contrary to the Father’s case, determines that the appropriate orders are care and placement orders, the Father would support there being a cut-off point of 6 months where the Local Authority amends its care plan to seeking long-term foster-care placement. xv) the Father’s position is that there should be orders made for contact between both the children and their parents but, and perhaps more importantly, between D and E and their siblings. Letterbox contact is entirely antiquated as recent research and speeches of the president show. Contact should never be seen as an ‘add on’ but rather it should be centre stage and seen as an integral part of the child’s support package as they move on towards adoption, adolescence and adulthood in the years to come and the court should accept it is better placed to determine what contact is needed for the children than prospective adopters would be.

12. Ms Vissian made short and focussed submissions on the Guardians behalf. i) Contrary to the submissions of the parents, the Guardian has carried out a careful evaluation of the competing options for the children and the impact on the children of a placement order being made. ii) The children’s psychological needs require permanence – long term fostering does not give them the certainty they need. Taking account of the harm they have suffered and extent to which that can be addressed by permanence, adoption is the only realistic option. The children would miss all the psychological/emotional benefit of adoption for the limited benefits of maintaining a family identity and the possibility of say monthly contact with siblings and perhaps parents. iii) The Guardian has been clear that the relationship that the children have to their siblings is sufficiently important that it should be maintained and it should be a priority in looking for prospective adopters. However ultimately if it represents a bar to the children being adopted the Guardian is of the view that permanence and the benefits of adoption outweigh the harm to the children in losing the benefits of their relationship with their siblings. iv) Finding long-term foster carers is likely to be harder than finding adopters. Whilst they wait to find long-term foster carers they would be in limbo; even if found they will experience the continued intrusion of being a looked after child in the absence of permanency. D’s presentation emphasises what he craves is a permanent home with people who he will regard as his. v) The Guardian considers that D is capable of settling in an adoptive placement given what she knows of him. E has been in care most of her life she is certainly adaptable to change stop she has managed change well. vi) The Guardian acknowledges that adoption carries risks, there may be a delay in finding prospective adopters; although the prospects of these children being found prospective adopters look positive there is a risk prospective adopters will not be found and of course there is a risk of disruption. However, all of these risks are outweighed by the potential benefits. Evidence

13. Having given a judgment on the fact finding and having also considered the ‘welfare’ evidence relating to the parents and B, A and C in July I am now focussing on that which is relevant to the issues of where the children’s long term placement should be and the question of the nature of their relationship with the parents and their siblings. I have in mind the findings that I made in relation to the harm the parents caused to the children, its chronic nature, that much of the detail came from the older children, that the parents claimed that the children were lying for a long period of time and that the assessment of the parents demonstrate very limited insight and progress. The circumstances of the father’s relationship with a 16-year-old and the mother’s relationship with a registered child sex offender illustrate how limited their relationship with the children could be given the risks they pose.

14. As I have referred to before the futile adjournment to assess the paternal grandparents has led to some of the evidence being less current than would be ideal. The Social Work Manager has been involved with the children since they were received into care and her knowledge of the children seems the most current. I would have been assisted by the Guardian seeing the children more recently and observing them with their siblings and perhaps with their parents but in a system which is short on resources across the board this is an unfortunate reality of life in the family justice system. I do not think that the inability of the social worker or the Guardian to have undertaken more direct work with the children in the period between late June and now has resulted in a material deficiency – that evidence would have been desirable rather than necessary.

15. The original social worker carried out the majority of the Social Work analysis although the Social Work Manager adopted it – but that is clearly different from having done it. She also adopted the evidence of the Sibling Assessment. She filed her own statement and undertook her own B-S analysis and her oral evidence and long history with the children demonstrated a good knowledge of the children and the issues although she was not (unsurprisingly) familiar with all of the detail of the statements of others which she had adopted and this lack of familiarity I thought undermined her confidence in her own analysis and I thought led her to agree with propositions drawn from other evidence without being able to explain or expand on the point when there seemed some obvious additional or counter-balancing points that might have been made. Overall, she was balanced and measured in her what she said and was obviously sympathetic to the position of the children and the parents. She made appropriate concessions but also stuck to her overall analysis. Some of the points which emerge from the totality of the social work evidence which bear upon the issues include the following i) Contact: there is evidence that A and B have had problems with the mother and father during contact in August 2023 ii) Contact with D: D really enjoys family time. Up until July 2024 he attended family time with parents twice weekly. Once with his sister E, and another time with E, B and A. The Mother and the Father have noticed that he gets unsettled towards the end of family time. He hides and clings to his father. They make a game out of it to help him to put on his coat. D is always highly emotional after family time and the smallest thing will trigger a tantrum. When he comes home from family time D struggles. His carers have shared that all transitions are always a wobbly and tricky time, not just family time. iii) D loves seeing his siblings. He follows B around mostly. D had the opportunity to spend some time with C when they visited her during the Easter holidays, and he was keen to show me photos of their time together with E at a funfair. He was mostly excited to show me the rides he had been on, telling me how brave he had been. E enjoys family time and has a good relationship with her mother. She loves playing with her siblings and during sibling contact she will usually follow A around. The Social Work Manager said D loves/looks up to his older brothers and that it would cause him significant harm to lose his relationship with them. This was why the care plan provided for direct sibling contact albeit at a significantly lower level than currently. The Social Work Manager said finding prospective adopters who would facilitate direct sibling relationships would be important. iv) November: none of the siblings paid any attention to C until the end. E mostly followed A around and D and B played together. v) the carers shared that D is asking a lot of questions about moving to new carers again and feels this must be on his mind because he has moved placement so often. She told him that he would move again but the next place would be where he stays. vi) D and E have also experienced good care whilst being with foster carers, and they have enjoyed going to family time to see their parents where they have had positive experiences whilst being supervised. D and E are likely too young to remember any physical abuse they may have endured and they do not appear to display behaviours indicative of trauma at present, although they are both very young and it may be that any difficulties in relation to this develop when they are older. vii) E and D have spent a significant period of their lives in foster care and have experienced good care from their care givers. They have likely learnt to trust adults and have positive experiences of family time with their parents. D has a very stable placement with his current foster carers, and they have a good routine. D can be quite challenging at times in his behaviour and doesn't like to be told what to do. The carers have worked really well on this and have put good boundaries in place. They have provided a loving, nurturing and safe environment for D and he is thriving in most aspects of his development. viii) There are no health or developmental concerns for D. He is meeting all his milestones and is developing as expected. He is doing well at nursery but as he gets more comfortable he gets more upset more than he used to. E is currently meeting all developmental milestones expected for her age. E's social and emotional development is within the expected range for her age, and she is displaying behaviours that are appropriate for her age. ix) D has moved placements three times since being in foster care and he is now preoccupied with a change coming up in his living arrangements. If he thinks about something nice, he often says 'oh I will have to leave that', or 'I will have to take that with me'. He makes comments like, 'I will be sad to leave them behind." He tells everyone he is moving again and is worried about this. E’s carers have described E as being very chatty and confident around people she knows and trusts, but shy and insecure around unfamiliar adults. x) The balance sheet approach was generalised in its presentation in the table but the totality of the analysis elsewhere provided sufficient flesh to the bones of the Table. She accepted that her own analysis of the effect on the children of adoption in losing their family connection to their parents and siblings was an omission. She had clearly thought about the benefits of the children maintaining stronger family connections if they were in long-term foster care but in her view the risks of long-term foster care combined with the benefits in permanency terms outweighed the benefits of maintaining those family connections and the harm (grief as she said) that would arise from their termination or attenuation. I did not think that she had preferred adoption merely because it was the orthodox view but had considered the alternative. xi) She said that the parents’ contact with the children would be assessed after they had undertaken work with the birth parent counselling service and following this they would be risk assessed for contact. She confirmed that the children look forward to seeing their parents and siblings and that they had a strong sense of their identity within the family and that they would actively look to promote the sibling relationships and would actively explore the possibility of direct contact with the parents after the parents had been risk assessed and after the approach of the prospective adopters had been explored. She was able to expand on the benefits to the children of maintaining their relationships with their siblings and family and remaining a part of that family and that the fact that the children had suffered emotional harm along with their siblings was a connection which perhaps made the maintenance of it more important. She strongly disputed the suggestion that adoption would mean D would have to erase his memories of his family but to the contrary his life story work would help him to make sense of what had happened. xii) She said “It’s a real balancing act – we need to prioritise permanency but as part of that Family Finding process we will actively encourage contact – if there are adopters who aren’t open to it we will consider that as to whether they are a suitable match. If it significantly limited the pool of adopters – permanency would take priority – we will promote that – we might say no to adopters who aren’t open to contact for siblings xiii) One of the factors in favour of adoption she thought was that D is currently a confused boy who is anxious and frequently refers to what will happen when he leaves his current foster carer. He had some emotional needs but they were not unmanageable. E was likely to be much more easily placed although she recognised that difficulties for D settling might impact on E. She was clear there were no foreseeable circumstances in which they would consider separating the two siblings. She thought they would be relatively easily placed because of the absence of any complicating diagnoses or other deep-seated problems. xiv) She accepted that finding a long-term foster carer was a rigorous process and that they would be looking for people to take the children for 13 to 15 years and they wouldn’t be moved to a placement until a stable one could be found. She accepted that long-term foster carers would be well trained, would be able to access support easily in the event of problems but her concern was that such a placement would be hard to find and was likely to face more risks to its permanency than adoption. She noted that D and E had had four foster placements in the two years – a combination of challenges that D presented and changes in the foster carers’ arrangements. xv) She said if the children had not been placed for adoption within 9 to 12 months then they would look to move to the long-term foster care track. xvi) The IRO shared her views with the Social Work Manager in September 2024 and confirmed that she is in support of the Local Authority's care plan of adoption for D and E, and would like permanency to be achieved for the children as soon as possible to avoid further delay.

16. The Family Finding evidence was adopted by the Social Work Manager. i) Nationally In June there were 88 prospective adopters open to a sibling group of E and D’s ages and with behavioural or emotional difficulties. In house or with the partner agency there were a handful of families who might be in the pool ii) The update showed a significant drop in the numbers with 17 prospective adopters but it was said that there was a refresh of the pool imminent. iii) The Social Work Manager said that the family finding team regarded the children as being towards the easier end of the scale to place than the harder end of the scale

17. A Sibling assessment was conducted by a previous social worker which was also adopted by the Social Work Manager. Some of the relevant parts include, i) During the session, which was at a soft play centre, LoganB and A initially played together, but then separated when their siblings arrived. A spent the majority of his time with E who was following him around. A did not appear to be pleased or unhappy about this. He asked me several times during the session when it was time to leave. He did not acknowledge C at all during this session until the end when all the children were prompted to take a photo together. ii) B was mostly positive about all his siblings and found something nice to say about all of them. The only negative comment he made was that D was annoying. During the sibling contact, B enjoyed playing with A initially in the soft play but then spent the rest of the time playing with D. He also spent some time with both E and D together in the under 5's area with A and D enjoyed copying their tricks. E also joined in. B did not acknowledge C until the end when the children were asked to take a photo. iii) C cannot speak during video calls, so these times are short but A and B both seem to enjoy them and will speak to C whilst she listens and smiles. iv) From observations of D during sibling contact, it is obvious he idolizes his older brothers and wants to do what they are doing. I have seen photos of D, A and B playing in a paddling pool together during the summer which were shared with me by the foster carers, and D is in the pool with his brothers and appears to be having a wonderful time. D did not acknowledge C at all during the sibling contact I observed. I have observed D with E on numerous occasions. Their relationship is very typical of two siblings and is very sweet but also, they can bicker and not want to share. v) From observations of E during sibling contact, it is obvious she adores A. She followed him everywhere and copied him and also B. E did not acknowledge C at all during this session. vi) D and E have been together throughout their lives. E has never known not having D in her life and she clearly loves him. I am not concerned about any difficulties in their relation other than 'typical' sibling behaviour that is age appropriate. vii) A, B, D, and E have an established relationship through the continuation of family time, despite having not lived together for over a year. For D and E, it is unlikely they remember living with their older brothers. E especially would have no recollection of living with her parents or her siblings. Their needs in respect of the significant harm they have experienced is very different to that of A and B, who clearly have significant memories of being harmed when living with their parents and therefore will need additional help and support in the future to process the trauma they have experienced. D and E have, however, unfortunately been moved to several different placements whilst being accommodated and the impact of this on them at such a young age should not A, B, D, and E have an established relationship through the continuation of family time, despite having not lived together for over a year. For D and E, it is unlikely they remember living with their older brothers. E especially would have no recollection of living with her parents or her siblings. Their needs in respect of the significant harm they have experienced is very different to that of A and B, who clearly have significant memories of being harmed when living with their parents and therefore will need additional help and support in the future to process the trauma they have experienced. D and E have, however, unfortunately been moved to several different placements whilst being accommodated and the impact of this on them at such a young age should not be underestimated. It is my view that both D and E would be at an increased risk of developing relationship-based difficulties as they grow older in relation to being able to form and sustain positive and healthy relationships, mistrusting adults, and perceiving their carers to be short term only and not permanent which will cause them to feel uncertain and unsettled, causing anxiety and building up low self-esteem and low self-confidence. viii) Fortunately, for D and E they have both had extremely good care from all their carers and have been able to maintain consistent relationships with their parents and older siblings throughout care proceedings, so this concern may be mitigated in that respect, but it is something to bear in mind when long-term care planning for the children if they cannot return home to live with their parents. ix) It is my view that D and E should remain together if they cannot return home to live with their parents, and that they should remain separate from their older brother's A and B. The justification for this is because D and E are at increased risk of developing additional needs and may potentially present with challenging behaviours or even develop attachment difficulties as they grow older, which would be extremely challenging for any carer to manage.

18. Contact reports were produced and some of the extracts show the following. i) Contact A: the children were excited and ran to parents, both parents hugged both children….. Children both had fun….. The children hugged and kissed both parents and said goodbye. Both parents were warm towards the children and wanted them to have a good time. Mother took photographs of herself with each of the children in a photo booth and gave it to them to keep knowing that this would have been a happy memory for the children ii) Contact B: E was clinging towards mother. A seemed to be testing the boundaries, D and B enjoyed the water fight but did not seem interested in what was happening around the table. Parents attitude at the beginning was very good. When it was time to come in and things were becoming disorderly parents shouted a lot of the children. The whole family had great fun with the water pistols, buckets of water and water balloons. Everybody was laughing, mother held E giving her a pistol and making sure she was included. …. Mother was angry and shouted at the father. All the children were quiet at the table and after approximately one minute the shouting stopped. D without prompt said to father “I love you” father responded by saying “I love you too”. iii) Contact C: when D and E entered the room they became excited when they saw their parents as they animatedly greeted and maintained eye contact. Alana initiated the greeting which included emotional and physical contact as she gave E and then D cuddles whilst maintaining eye contact which was reciprocated the Father then gave D and E a cuddle which was reciprocated. D and E were content as they easily communicated, played and interacted with their parents. D went to sit next to his father on the settee. The Father gave him a cuddle which was reciprocated. D requested to watch a cartoon. E requested her mother to apply nail varnish on her nails and she complied. E and D looked content and participated fully. They interacted well and enjoyed playing and interacting with their parents. They communicated, interacted and played inside the room and outside in the garden. There is a strong bond between the parents and the children and they equally care for each other….. There was a good balance of emotional and physical contact

19. Dr Willemsen provided the psychological assessment of the parents which included an assessment of their ability to care for the children which required some consideration of the children themselves. Relevant parts of his evidence include; i) In this matter the children have been exposed to parents who are, mostly, not emotionally available to them, due to a minimal ability to empathise with and attune to the children's needs.

6. Each of the parents was unable to address the needs of the children. The parents were hardly able to put the child central in their thinking. The parents' thinking about their children was characterised by their need to re- establish the family.

7. This phantasy of the re-unification was not based in the reality of the harm the children suffered, as was found by the court and which, to a limited extent, the parents had admitted to. ii) The children need reparative parenting, above the extensive ordinary needs of a family of five children, and the demanding needs of a severely disabled child. For reparative parenting to be successful, the parents will need to acknowledge the children's adverse experiences in their care, and to show the children a level of insight and remorse. In other words, reparative parenting inevitably requires the parents to understand their own short-comings and how these may have affected the children. While raising the children in day-to-day life, the parents also need to help the children adapt to the adverse consequences of their shortcomings in the family environment. iii) These are shortcomings which affected the children in the past, and short- comings in the here-and-now. Helping the children adapt to these shortcomings, requires the parents to have insight and reflect, an ability to attune to the emotional needs of the child, and be able to accept their own limitations. iv) In my view, unfortunately, the parents' ability to attune to their own feelings, and to the feelings of their children, is not adequately available; neither is there an adequate level of insight, nor adequate acknowledgement of the judgment, nor adequate willingness and ability to learn from others.

12. It is difficult for the parents to allow themselves to dependent on others, professionals and the court, to help them change. It is difficult to allow themselves not to know. In turn, the children cannot be adequately dependent on their parents.

13. Unfortunately, the behaviour of the parents is not likely to change in the short to medium term with the consequence that a recommendation is made that the children are not returned to the care of their parents. v) The attachment organisation of B and A is likely to be insecure and has disorganised qualities. The disorganised attachment is a result of the children's needs being met aggressively by the parents. The lack of trust in his parents is likely to be reason that A, at times, had not wanted to see his parents. In a disorganised attachment organisation, the parents are represented as not responding, or responding negatively to the child's needs….. On face-value, during the observation, D and E appeared to attach to their parents. I was concerned, however, that the children were exposed to two parents whose wish it is to have the children placed with them. A phantasy was created in which the children may now feel held and a secure; part of the children's relating to the parents may have been reflective of the parents' longing to have the family together. The child ultimately wants that too. vi) In his first Addendum he dealt with the mother’s response to my findings; in significant measure she did not then accept them. vii) The 2nd Addendum report confirms that despite attending psychotherapy both parents have embarked on activities that demonstrate a lack of progress in identifying sources of harm ; the father is currently on bail for rape of a 16 year old (the fact of the relationship would raise serious questions about his insight anyway) and the mother is in a relationship with a sex offender and not being honest about it.

20. The Mother has filed 3 recent statements. i) In her statement in September 2024, she put herself forward to care for D and E she said this was because a) Now I know that it will just be me on my own, I feel much more comfortable fighting for them to return to my care. b) Not having the additional pressure of managing a poor and unsupportive relationship with the Father is a significant change which has already made a positive impact upon my life. c) I have made significant progress in therapy as set out below. d) The Social Worker has commented that she has seen a significant change ii) In her addendum statement she largely accepted the findings save the puncturing of the ED line iii) In her final statement dealing with her relationship with the registered child sex offender, in respect of the relationship with ZO a registered sex offender with outstanding investigations for rape and sexual activity with a minor she said “I know I should have ended things with ZO sooner, but it was hard to shut off my feelings for him even though I had found out what I had. I ended things with ZO at the beginning of October 2024 over the phone. I stopped speaking to ZO for my children. Him being in prison meant that it gave me some time to think about everything. I messaged him when he got released but I know this was the wrong thing to do and I should not have. iv) As the court is aware, I have been engaging with therapy as recommended by Dr Willemsen for 8 months now. I have requested a letter from my therapist and once received will seek permission to file this before the final hearing. v) I no longer seek the return of E and D into my immediate care because I do accept that I still have work to do. However, I oppose placement orders as proposed by the Local Authority. I have always said that if they cannot return to my care, then I wish for E and D to remain in long-term foster care. This is now my main position. E and D have really strong bonds with all of us and it would not be in their best interests to cut their ties with our family. The contact sessions have been nothing but positive”

21. The father filed his final evidence in October. He did not give evidence. In that statement he said i) he accepts that he engaged in sexual contact with the 16-year-old but denies raping her. The investigation is still ongoing ii) he has completed a parenting diploma and a nurturing parenting program and has engaged with a private therapist. This work is ongoing. He has been working on a number of issues including his self-confidence and self-esteem. His therapist says she has noticed a significant transformation and she says that he is well equipped to be a positive and active participant in their future. He says he wants to make himself a better person not just for himself but for the children. iii) He confirms that he does not seek the return of D and E to his care and supported the mother’s position. When she withdrew from seeking to care for E and D his position remained that he opposed placement orders being made and wish the children to remain in long-term foster care. His particular concern was the length of time it might take to find adoptive placements and how likely it would endure given D’s age. He was concerned that the local authority would seek to separate the children. He was also concerned that with C, A and B being in long-term foster care the adoption of D and E would mean they are no longer siblings. He said this As D and E grow older, they will learn why they have been placed for adoption. They will be made aware of C, A and B being placed in long-term foster care and they will undoubtedly know that their parents continue to spend time with their siblings. The sense of loss and rejection that D and E will feel will subject them to harm. Guardians report

22. The Guardian was appointed in September 2023. She was instrumental in contacting the paternal grandparents and promoting the possibility of them being assessed as special guardians for D and E. She filed a detailed final analysis in June 2024. It is a fair criticism of that report that she did not consider the possibility of long-term foster care for D and E at all. Some relevant evidence from that report includes: i) D and E are placed together with Local Authority foster carers. Sadly, for D and E, they are presently on their fourth placement currently due to previous placement breakdowns. They have been with their current carers since the middle of 2023. They have settled well with their current carers and have formed good relationships and bonds with the carers and other young people in the home. ii) I am really concerned that sibling contact has not been consistent throughout these proceedings. While A and B do get to see D and E during family time with their parents there is no regular contact for the siblings alone which is absolutely essential. A, B, D and E have very little contact with C. This is continuing to have a huge impact on the children's identity and emotional needs. iii) The ISW , Ms Jackson notes that the parents have consistently engaged with a nurture group and have been utilising strategies they have learned in the nurture group during their family time, they have been proactive in seeking therapeutic interventions, family time sessions are generally a positive experience for the children, with parents working well together to split their time and attention with the children. iv) D and E are still of very young age. D tends to worry a lot and appears to be developed beyond his age. Explaining proceedings to him will confuse him further and probably cause him to be more anxious. It is my view that he should only be given any information that has certainty. While the Local Authority's plan for him is for adoption, his paternal grandparents also wish to be assessed to care for him. I would imagine that D would choose to be cared for by his grandparents as this option might give him the confidence that he would not need to move again. E on the other hand is oblivious of what is going on and is a happy toddler. She would most likely also choose to be cared for by her family than to be adopted. v) In regard to sibling family time, D and E, I am told are very happy when they meet up with their brothers and sister. It is going to be important for them to maintain their bonds with their brothers and sisters. If they should go on to be adopted, it would be even more important to have at least twice per year contact with their brothers and sisters, I believe that this would be in their best interests. vi) D is preoccupied with a change coming up in his living arrangements. D is bright and his carers and teachers are pleased with his learning. But emotionally, he is confused. A social story was created to help him understand the care proceedings. He is so bright, but he has so many questions and cannot understand or process the answers. His foster carer informed me that he remains incredibly anxious about where and when he is going to move again and sometimes, they hear him say to himself "just one more move … just one more move". D thus requires nurturing as well as careful management of his anxieties. vii) E is currently meeting all developmental milestones expected for her age. E's social and emotional development is within the expected range for her age, and she is displaying behaviours that are appropriate for her age. During visits she is very shy and clingy to her carers. Her carers have described her as being very chatty and confident around people she knows and trusts, but shy and insecure around unfamiliar adults. There are no reports of E presenting with challenging behaviour. viii) Family time records show that the Mother and the Father have a good bond with D and E and that their family time with their parents is largely positive. the Mother and the Father have been very committed to family time and have only missed family time when they were unwell, or the children were unwell.

23. In her oral evidence the Guardian confirmed that she had spoken to D and E’s carers recently who had said that he had improved a little but continue to be worried about the next move. She considered that he craved a permanent placement and an end to the uncertainty. She thought that his contact with his parents and siblings did not in any way ameliorate his concerns about his lack of permanency and that a move to another foster carer would not represent the permanency he needs. She acknowledged she had not seen D and E with either their siblings recently or with their parents but she had read the contact records and she knew that the children had a good bond with each other and with their parents. The Guardian said she was less concerned about prospective adopters not being open to contact as the trend within adoption circles was to promote direct contact but if she had to make a choice she would consider the benefits of adoption and the permanency it would give the children would outweigh the benefits to the children of remaining in contact with their family but in a less permanent foster placement. She thought the risks of breakdown in the foster placement arose from a variety of different sources; the changes in foster carers lives and the difference in the quality of commitment that foster carers gave presented higher risks. Although she agreed that from D’s point of view one more move might be a move to an adoptive placement or a foster care placement in her experience long-term foster placements were more at risk of breakdown and thus less likely to represent one more move compared to adoption. She said she was aware that the statistic showed the risk of breakdown increased where children were five and that had been one of her concerns when she reported in June and so her concerns were elevated now but she still considered a placement was realistic for them. She acknowledged that a breakdown in an adoptive placement would be catastrophic for them but in her experience adoption breakdown for these children was not a high risk in her view. She did not think that family finders were unduly optimistic. She acknowledged the benefits of maintaining their relationships but considered this could be achieved through contact whilst in an adoption placement and that the loss of the relationships that adoption might result in, are harmful but the benefits of adoption outweighed that. She thought that if the children had not been adopted within a year a change of approach would be required as D and E would then be rising six and four respectively and that a review should take place at about the nine-month stage. In relation to the statistics she considered that in her experience and with the ages of the children and their profiles she thought they would be realistic prospects for securing an adoptive placement. She acknowledged she had not considered long-term foster care for D and E in her report and that the benefits which she had considered applied to A and B would also apply to D and E but she had not thought of adoption for A and B whereas she did for D and E. She said “There isn’t an option with no risks – there will be risks in adoptive placement or long term Foster Care- sometimes it is a fine balance – but one has to look at the over-riding position which will provide most benefit” The Legal Framework

24. In considering the Local Authority’s application for a care order, I must have regard to s.1 of the Children Act and since the plan is for adoption, also to the welfare checklist in s.1(4) of the Adoption and Children Act 2002: see Re C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ. 1257 and Re R [2014] EWCA Civ. 1625. I note that in Re W-C [2017] EWCA Civ 250 Lord Justice McFarlane said it was not necessary in a case such as this to consider the case through the prism of the s.1(3) welfare checklist but rather should focus on the ACA s.1(4) welfare checklist. Likewise, I must treat as my paramount consideration in accordance with s.1(2) of the 2002 Act, the children’s welfare throughout their lives.

25. Section 1(4) of the Adoption and Children Act 2002 provides: “The court or adoption agency must have regard to the following matters (among others)- (a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding), (b) the child’s particular needs, (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, (d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant, (e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant including (i) the likelihood of any such relationship continuing and the value to the child of its doing so (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives or of any such person regarding the child.

26. In respect of placement, s.21 and s.52 of the Adoption and Children Act and s.52 apply to that application. Section 52(1)(b) provides: “The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that- (b) the welfare of the child requires the consent to be dispensed with.”

27. In Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625, the Court of Appeal held that the word “requires” has a connotation of the imperative i.e. what is demanded rather than what is merely optional or reasonable or desirable. What has to be shown is that the child’s welfare throughout her life requires adoption as opposed to something short of adoption. The child’s circumstances may require statutory intervention, perhaps may even require the indefinite or long term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily require that the child be adopted. The question at the end of the day is whether what is required is adoption.

28. It is for the Local Authority, since it is seeking to have D and E adopted, to establish that nothing else will do: see Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, Re B-S (Adoption: Application of s.47(5)) [2013] EWCA Civ. 1146 and Re R. As Baroness Hale of Richmond said in Re B: “…the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.” Behind all this there lies the well-established principle, derived from s1(5) of the 1989 Act, read in conjunction with s1(3)(g), and now similarly embodied in s1(6) of the 2002 Act, that the court should adopt the 'least interventionist' approach The question, at the end of the day, is whether what is 'required' is adoption."

29. This echoes what the Strasberg Court said in Y v. The United Kingdom [2012] 2 FLR 332: “…family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained.”

30. Following the decision in Re B, the Court of Appeal addressed the approach to proportionality in adoption in a series of cases, in particular Re G [2013] EWCA Civ 965 and Re B-S [2013] EWCA Civ 1146. Those decisions stressed the need for (in the words of McFarlane LJ in Re G at paragraph 54) “a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options”.

31. This requires the local authority, the children’s guardian and the court to carry out a robust and rigorous analysis of the advantages and the disadvantages of all realistic options for the child and, in the case of the court, set out that analysis and its ultimate decisions in a reasoned judgment.

32. The judicial task is always to evaluate all the options and undertake a holistic evaluation of the child’s need. In Re B-S, the Court of Appeal stressed the following three points: (1) “Although the child's interests are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible. (2) the court ‘must’ consider all the options before coming to a decision. (3)  the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer.”

33. In Re B-S, the court held that the following two elements are essential when the court is being asked to approve a care plan for adoption and make a non-consensual placement order or adoption order: (a) There must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option; and (b) Certainly, there must be an adequately reasoned judgment by the Judge.

34. It is always important to bear in mind what Mr. Justice Hedley said in Re L, which was that: “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

35. That approach has been endorsed by the Supreme Court in Re B, where both Lord Wilson and Baroness Hale emphasised the very diverse range of parents and the diverse standards of parentings that society must be willing to tolerate: “the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs.”

36. Sir James Munby, in Re G, emphasised the task of the court in relation to carrying out the global holistic evaluation and the need to undertake a multi-faceted evaluation of the child’s welfare taking into account all the negatives and positives, all the pros and cons of each option. To quote Lord Justice McFarlane: “What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives, and each option is then compared side by side against the competing option or options.”

37. I must take into account D and E’s welfare throughout their lives: their short, medium and long term welfare interests. I approach it on the basis that, if adopting a solution of permanent separation from their parents, it is on the basis that “nothing else will do”. Delay is likely to be prejudicial to their welfare, although planned and purposeful delay may be appropriate.

38. I take account of the Article 6 and Article 8 rights of the children and the parents. I remind myself that, where there is a tension between the Art.8 rights of the parents on the one hand and the Art.8 rights of the child on the other, the rights of the child prevail: see Yusuf v. The Netherlands.

39. In determining what order to make, to the extent that it infringes the Art.8 rights of the mother and the father and of the children, the court must be satisfied that it is necessary and proportionate. Any conflict between the interests of the subject child and that of the parents or siblings should be resolved in favour of the solution which best promotes the subject child’s welfare. In determining the proportionality issue, I approach it on the basis that if, on welfare grounds, the option of placing the child in long term foster care is only marginally outweighed by placing them for adoption that may be disproportionate. Conversely, if the adoption option is clearly more likely to promote the child’s welfare that will be a proportionate interference.

40. In carrying out the assessment, plainly some factors will carry far more weight than others. The balance sheet approach advocated by Lord Justice Ryder, whilst helpful, cannot convey the relative importance of any particular issue. The holistic evaluation is not a map without contours, but rather one in which there may be very significant features on the landscape which may ultimately come to dominate the outcome. The fact that long-term foster care is also seen as a form of permanence does not mean that the benefits of long-term foster care are of equivalent weight to the benefits of adoption. Nor does the risk of breakdown in adoption equate to the risk of breakdown in long-term foster care. Each contained more nuanced components which clearly can result in different weight attribution. Contact and Adoption

41. The Adoption and Children Act 2002 contains the framework for adoption contact: i) Section 26(2)- Whilst an agency is authorised to place for adoption or the child is placed for adoption, the court can under this section make an order for the child to visit or stay with or have contact with a person named in the order. ii) Pursuant to section 26(4)- the court may on its own initiative make an order. The court has the power to make orders, including in the absence of an application following for example exploration of the issue in cross-examination during a final hearing. iii) Section 27(4)- before making a Placement Order, the court must consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child and must invite the parties to the proceedings to comment on those arrangements. iv) In accordance with Section 27(5)- an order under s.26 may provide for contact on any conditions the court considers appropriate. This provision delivers the court a wide discretion. For example, a court could make an order for contact that it considered to be in the child’s best interests with a condition that the contact will not continue as ordered unless the adopters are in agreement with its continuation at the point of placement. This would certainly be a way forward that provided guidance to adopters about what the court considered to be in a child’s best interests, without fettering their autonomy.  v) Section 46(6)- before making an adoption order the court must consider whether there should be arrangements for allowing any person contact with the child; must consider any existing or proposed arrangements and obtain any views of the parties. vi) Section 51A(2)- when making an adoption order or at any time afterwards, the court may make an order under this section allowing or prohibiting contact. vii) Section 51B(1)(a)-An order under section 51A may contain directions about how it is to be carried into effect and s.52B(1)(b) may be made subject to any conditions the court thinks appropriate.

42. In Re B (A Child) (Post-Adoption Contact) [2019] 2 FLR 117, the Court of Appeal (The President forming part of that Court of Appeal bench), considered the issue of post-adoption contact. The Court held that post-adoption contact is an important issue which should be given full consideration in every case and will be determined by applying the bespoke adoption welfare provisions in ACA 2002, s1, where the focus is not just upon the welfare of the subject of the application during childhood but throughout their life. A placement for adoption hearing has the potential for having an important influence upon the development of any subsequent long-term contact arrangements. As required by ACA 2002, s27(4), the court must consider the issue of contact and any plans for contact before making a placement for adoption order. The court's order may well, therefore, set the tone for future contact, but the court must be plain that, as the law stands, whilst there may be justification in considering some form of direct contact, the ultimate decision as to what contact is to take place is for the adopters and that the court will be 'extremely unusual' for the court to impose a contrary arrangement against the wishes of adopters.

43. Most recently Baker LJ has considered the issue in Re C (Adoption or Fostering), [2024] EWCA Civ 1302. He said “Unlike newborn infants, older children placed for adoption have experiences, memories and relationships arising out of living within their birth families. They need the security and permanency which adoption provides. But in many cases they also need to sustain their relationships with some members of their birth families. All adopted children need to develop an understanding of their background and identity. For infants, that can often be achieved through life story work and letter box contact. But for older children, sustaining their sense of identity will in many cases be best achieved by continuing direct contact with members of their birth family.”

44. The court said this, with approval The judge acknowledged that “long-term foster care cannot be equated to adoption in terms of permanence” and cited passages from judgments of Pauffley J in Re LRP (A Child) (Care Proceedings – Placement Order) [2013] EWHC 3974 (Fam) at paragraph 39 and Black LJ in Re V (Children) [2013] EWCA Civ 913 at paragraph 95 in which those judges referred to the difference in security provided by, respectively, long-term fostering and adoption, including Pauffley J’s observation that “long-term foster care is an extraordinarily precarious legal framework for any child” A key element in the judge’s reasoning was his assertion that “permanence comes at a significant cost, namely the complete and irrevocable severance of all ties with the natural family”. As demonstrated by the summary of the case law set out above, that may have been true of all adoptions at one stage, and it remains true of some adoptions now. But it is emphatically not true of many adoptions and is at odds with the concept of open adoption which is now embraced as a model in what the President has called the modern world. The judge acknowledged that the severance of ties with the natural family “can sometimes be ameliorated by continued contact between the birth family and the adopted child” and that, in this case, the local authority has “committed itself to a search only for adopters willing to promote direct sibling contact”. He discounted these factors, however, on the basis that ongoing contact “is at the discretion of the adopters” and that “sibling contact cannot be guaranteed” because “even adopters who are open to it initially may not continue to promote it after the making of an adoption order”. In reaching his conclusion, the judge quoted passages from my judgment in Re T and R. It does not follow, however, that in every case where the court concludes that it is strongly in the interests of the children to continue to have sibling contact the option of adoption should be ruled out. Each case turns on its own facts Under the current law, as the President said in Re B, “it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree”. But that does not obviate the court’s responsibility to set the template for contact at the placement order stage.  In Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948, this Court allowed an appeal against a judge’s refusal to make a placement order and made the placement order itself. In his judgment with which the other members of the Court agreed, Peter Jackson LJ concluded that the child’s relationships with her birth family were “not of such importance that they can outweigh the predominant need for her to have a family of her own”. He described this as a factor which spoke “in favour of contact taking place, if it can be arranged, after C is placed for adoption and later adopted.” He recorded that the local authority could be “expected to honour its care plan for current contact, and for a 3-month search for adopters who will accommodate meetings with family members.” But he concluded that “overall, it would not be better for us to make a contact order, in fact it might be detrimental to the greater priority of finding an adoptive family for C.” Evaluation

45. I turn to consider the s1.(4) ACA welfare checklist together with aspects of the s.1(3) ChA checklist which I must have regard to in undertaking the holistic and comparative evaluation of which of the two options of adoption and long term foster care will best promote the children’s welfare throughout their lives. the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

46. it has not been possible to directly establish either D or E’s wishes and feelings. The evidence in relation to D’s specific anxieties support the inference that he wants a permanent home with all that brings. His fear of being moved on again and having to leave important things behind and his anxiety about new adults coming to the home support the conclusion that he very much wants a permanent home. By that I infer that he wants a home which insofar as it can be replicates the solidity and permanency that having a mum and dad and being a part of a wider family network will bring. D is said to be a bright child and whilst he may not have an appreciation of the finer points which differentiate the permanence of adoption from the permanence of long-term foster care I do not think it will be lost on him that adoption gives him a new family of which he is a permanent part – in which he will call his new parents mum and dad. Conversely I do not think it will be lost on him that long-term foster care is not a family that he has become part of but is a place for him to stay hopefully for his minority but even to D I think the difference will be apparent and that he will not acquire the security in long-term foster care that he would in adoption. At the back of his mind may always lurk a nagging doubt as to when his carers might no longer be able to care for him. That will be a profound difference between long-term foster care and adoption. For E who is less complicated by the depth of her memories and bonds with her family I would accept that the orthodox approach founded in psychological social work and legal experience would apply and that she would wish to have a permanent family who she will for ever be a part of and to whom she will be connected at the most profound emotional levels.

47. Equally I would accept that D in particular but also E would want to maintain their relationships with their siblings in particular and at present to their parents. It is clear that both D and E are well aware of the relationships they have with their siblings are connected to them, love them and enjoy their company and they would wish to continue to experience this relationship in the short medium and long term. The current frequency of their contact has maintained these relationships and they appear to have developed. The relationship with their parents is at present a fairly straightforward one; the contact notes show the affection and pleasure that the children derive from these meetings. However this is a more complex relationship-the example of the children being fearful when the mother began shouting at the father probably illustrates that the children carry with them the scars of their exposure to the abusive of the parents and which can be triggered by exposure to harshness once again. Equally the relationship would become more complicated with adoptive parents or perhaps with long-term foster carers who will become the parents or most significant adults and the children’s loyalty may be torn. As the children grow into adolescents and teenage years their feelings towards their parents are likely to become more complicated as they come to appreciate the harm that their parents caused to them and to their brothers and sister. I would therefore infer that the children would wish at present to maintain a relationship with their parents but that this may change over time as emotional competition arises with new parent figures or as the children mature and come to appreciate their history more fully. the child’s particular needs,

48. D carries with him a level of anxiety arising from his removal from the family home and the foster placements which followed. Dr Williamson opined that he and E were probably securely attached to their parents in contrast to A and B who demonstrated more insecurity in their attachment. It seems likely that D and E are in fact able to have a secure attachment with a parent figure. D has a specific emotional need to know that his home is a permanent one – this would seem to be over and above that need which every child has for a forever family with all of the benefits that go with this. For D this means he has a need for the best form of permanent home that can be achieved it is corrosive to an individual’s well-being, ability to trust and ability to settle to have a lurking fear that they may have to move on. This anxiety that D has needs to be extinguished to the maximum extent that is possible.

49. As these children know their mother and father and have in respect of their siblings a positive relationship and in relation to their parents a more complex melange of positive and negatives, they do have a specific need to maintain those relationships so that they know that their family is okay, so that they can derive benefit from spending time with them, so that their connection with the history of their family and their roots and identity are a part of their life. This need is greater in respect of their siblings who they will have perhaps the longest relationship in their lives with and who even if there are siblings or sibling figures in an adoptive or foster placement will maintain a significance which is distinct from that of the mother and father. In relation to their mother and father though they have a need to maintain all of this but perhaps at a less intense level.

50. Other than these particular needs the children have the needs of any other 2/3- and 4/5-year-old the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

51. if the children remain looked after children in a long-term foster placement their lives will in many respects continue as they have for the last year. Until a long-term foster placement is found they would remain with their current carers where they appear to be happy and stable albeit D is currently very aware that it is not his permanent home and this cannot be mitigated to any great extent. That knowledge that he must move on clearly is causing him significant anxiety and will continue to do so until a permanent home is found. Upon moving to a long-term foster placement he would find a degree of security as he would be told that it was the intention that he would remain there until he is

18.

52. If D and E are adopted they will cease to be legally the children of the mother and father or the brothers and sisters of A, B and C. D is an intelligent and curious boy and he knows he is a part of the family. The severance of this legal link carries with it emotional and practical consequences. Almost certainly even if contact is maintained in an adoptive placement it will be at a lower frequency than is currently the case. The care plan seeks a minimum of yearly sibling contact whereas currently it takes place monthly and there would be no reason why that might not continue in a long-term foster placement. D looks forwards to sibling contact and any significant reduction of the sort contemplated will be distressing for him. Whether it might be made up by the establishment of newer sibling relationships would depend on the adoptive placement. Being told that his mother and father were no longer his mother and father but that his adoptive mother and father were taking their place will also likely have a significant impact; however well attuned to the adoptive parents are and however much preparatory work is done this will be a difficult step for D in particular to take. His knowledge of his mother and father is a more deep-seated one than it is for E as he lived with them until he was nearly 3 and has maintained a positive relationship since he was removed from their care. For E the likely effects are likely to be at a lower level because she was removed from the parents care at nine months and so her attachment to them and awareness of them as mother and father is less intense.

53. As D and E grow into adolescents and adults, the ending of their legal relationship with their siblings is likely to become more apparent to them and may be more significant. Although their interest in C has appeared to be at a lower level, as they mature they may become far more conscious that they have a disabled sister, particularly if her health deteriorates. They may feel a sense of guilt or loss that is more acute with her for that reason. Equally they may feel a sense of loss and guilt in relation to A and B if they experience a stable adoptive placement and their brothers experience more instability in long-term foster care. As they grow into their teens and into adulthood they might feel cut adrift from their biological roots if they were adopted. The position in relation to their parents is a harder one to gauge. Being adopted may provide them with a distance from their mother and father and the negative associations that come with both the harm they have done to their own children, their dishonesty and blame shifting to the children, and their current inappropriate or dangerous relationships. It may be a relief to D and E to be able to say they aren’t really our parents. However there is likely to be some sense of loss notwithstanding those negatives as they will probably also carry with them some positive memories laid down through the better times. the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

54. E at rising three and with relatively limited exposure to the abuse of her parents should be capable of settling well in an adoptive placement and would fall into the cohort of children who would be more easily adoptable. Equally with that profile she could be an easy child to foster. That profile would suggest she is not presenting a risk of significant emotional or behavioural difficulties in the future over and above those which might emerge for any child placed permanently away from their family whether in an adoptive or foster placement. At her age one would expect an adoptive placement to provide the emotional physical and educational security that would minimise the risks of such problems emerging.

55. D at rising five and with a greater exposure to abuse and with some history of challenging behaviour and anxiety has a profile which might make him less attractive as a candidate for adoption although in the realms of children eligible for fostering he is likely to be at the least challenging end. Even in terms of adoption it seems to me he is likely to be at the more likely to be adopted end of the spectrum. However his age and his memory of his family means that as he grows older there are likely to be more challenges for an adoptive placement in addressing the issues of loss which will be more evident for D than for E. any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,

56. at the hands of their parents both children were exposed to emotional abuse of themselves and of their siblings. They will come to know in due course perhaps a little more of the specific findings that I made in relation to both of their parents which may result in considerable feelings of anger and confusion which will need to be addressed. That their mother could deliberately puncture her disabled daughter’s medical equipment will be hard for them to assimilate. Equally their father’s abuse and his failure to protect them from the mother will be hard to assimilate. Given that there is no prospect of them returning to the care of the parents their exposure to that sort of harm is now to all intents and purposes extinguished. The contact notes suggest that within a controlled environment both parents can be sufficiently contained that the children are not further harmed. The mother’s displays of anger in contact are probably not out with those which many parents might exhibit although for these children with their history of exposure to the mother’s anger it is likely to be more triggering. That will need to be addressed.

57. In a long-term fostering placement the children will be living with trained foster carers who can be expected to meet their physical educational and emotional needs and not to expose them to harm. The harm that would come from a long-term foster placement would be that which arises from the relative lack of forever stability that a foster placement inevitably has and which would be apparent to D to some degree. If that fact were apparent to D-and he seems to be a boy who is likely to pick up on it, there is a risk that his sense of anxiety and insecurity will become built into his psychological make up which is likely to become increasingly harmful as he moves into adolescence and adulthood. Whether D’s anxiety would transfer to E is hard to know clearly there must be some risk that as close siblings his fear of moving on again might be transmitted to her. No doubt long-term foster carers would be trained and supported in helping D to feel as secure as he could but the risk nonetheless remains.

58. In an adoptive placement one would again expect his new parents not to harm him or expose him to any risk of harm but rather to minimise the risks and to address the consequences of harm that he has already experienced. However there is of course a risk of emotional harm to D and to E of the severance of their legal familial ties to their family and of the emotional consequences of that severance and of a reduction in their relationships with their parents and their siblings. It seems to me the risks are greater in relation to the siblings for the very reason that the parents have harmed them and still present has potentially harmful characters. Such harm may be mitigated by the continuation of the relationships with the siblings and perhaps with the parents which would reassure the children that their family was well and maintain a sense of their identity and roots. There is clearly a risk of adoption breakdown and I accept that an adoption breakdown would have more severe consequences than the breakdown of a long term fostering placement. However the adverse consequences of an adoptive breakdown are precisely because it offers that much greater permanence, security, stability and knowledge of a forever family and it is that loss of another family which would be so catastrophically harmful. However although at age 5 D is into a higher risk category the other aspects of his profile suggests that the risk of him developing such severe behavioural or emotional difficulties that it becomes unmanageable in an adoptive placement are low. Therefore the risks of harm to D and E of an adoptive placement breaking down whilst catastrophic were to happen, lie in the low risk of probability bracket. How capable each of his parents , and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

59. the parents are capable of meeting the children’s needs only in the most attenuated sense within the confines of supervised contact.

60. Long-term foster carers would be expected to be capable of meeting all of the children’s needs and would both be trained, probably subject to ongoing training and would have access to the resources of the social services department the children continuing to be looked after children. Long-term foster carers would, one would expect, become attuned to the children emotionally and be capable of supporting their developing needs. They would on one level be capable of meeting the children’s needs for permanency albeit clearly there is a risk that any foster carer might be subject to changes in their life or otherwise which would result in them not seeing the children through to age

18. At age 18 the child would cease to be a looked after child and so their relationship with the foster carers would change and possibly end.

61. Parents would be expected to be capable of meeting all of the children’s needs and would also in the current adoption environment have undergone a degree of training as well. They would not have immediate access to looked after child resources but would be able to access adoption support services. As adoptive parents one would expect them to become attuned to their children’s emotional needs and to be able to support them to come to terms with the fact of their adoption, and to manage any sense of loss or guilt the children felt. They would meet the children’s need for permanence in full measure and would provide this permanence and stability throughout childhood and indeed one would expect throughout the prospective adopters’ lives. the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant including the likelihood of any such relationship continuing and the value to the child of its doing so the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs, the wishes and feelings of any of the child’s relatives or of any such person regarding the child.

62. The children have valuable relationships with their siblings and with their parents. There is clearly a greater likelihood of the relationships continuing if the children remain in long-term foster care albeit the frequency and duration of the time they spend with their siblings and parents would fall to be reviewed. If the children are adopted the extent to which their relationships with their siblings and parents could continue will ultimately (under the current legal framework anyway) really be left to the discretion of their adoptive parents. One would expect in the current climate that prospective adopters would understand that the research demonstrates that maintaining links with the birth family is likely to promote the stability of the adoptive placement rather than to undermine it.

63. Long-term foster carers would be expected to promote the contact of the children with their siblings and with their parents and to this extent there is a guarantee in long term fostering that those relationships will be maintained. That cannot be said of prospective adopters although I would expect in this case that the children’s profile would make clear that the maintenance of their sibling relationships was essential and that some form of relationship with the parents was desirable.

64. The mother and father nor any other family member are in a position to offer the children a secure environment in which the children could develop all their needs be met.

65. The parents wish to maintain their relationships with their children and I have no doubt that that is a sincere wish emanating from their love for their children. However given they have seriously harmed the children, have not fully accepted their responsibility for that and continue to present a risk to their children, their views’ weight is moderated. A, B, and C would clearly wish to maintain a relationship with D and E. B and A say as much and place it very highly in the order of priority for themselves. All three of those children need to maintain a relationship with D and E as much if not probably more than D and E need to maintain a relationship with them. Each of those children will be living in long-term foster care assuming placements can be found for A and B.

66. Although it is self-evident in this case I must also consider the range of powers which exist. The two obvious are the power to make a care order on the basis that the children’s best interest will be met by long term fostering; the alternative being a care and placement order. However I also need to consider the power that exists to make a contact order pursuant to section 26(2)(b).

67. Drawing all of these threads together and seeking to compare the respective risks and benefits of long-term foster care is against adoption is to tackle the ultimate question.

68. These two children are too young to articulate their wishes and feelings. It is reasonable to conclude, however, that they would want to live in a home where they were loved and well cared for and felt secure. They would want to live with their siblings to whom they are attached or, if not, have regular contact with them. What they would want in relation to their parents is much more nuanced in terms of living with them – they would want to continue to see them for the time being.

69. D and E need to be placed together. Neither child has any particular physical, health, or educational needs. Like all children, they need the security of a stable and loving home. They need to have the opportunity to form attachments with primary care givers. They have a close relationship with their siblings which must be maintained through regular contact. Whether they are in long-term fostering or an adoptive placement, they will need help and emotional support coming to terms with the fact that they are not living with their birth family and the sense of loss that this may bring. They will also need help with the sense of loss they will suffer moving on from their current carers. They will need assistance growing up with an understanding of their background and identity.

70. If placed for adoption, the likely effect on them throughout their lives will be that they will prosper as members of their adoptive family and have a sense of belonging which most (though not all) adoptive children experience. On the other hand, they will cease to be members of their birth family and they are likely to experience, to a greater or lesser degree, a sense of loss which may become more prominent in adolescence as they come to understand more about their background and identity. This can be ameliorated by careful and sensitive support, including life story work, and importantly in this case through maintaining their relationships with their siblings.

71. D and E have experienced harm when living in their parents’ care and through being removed from their family. Their experiences have made them more vulnerable and in greater need of the stability of a secure placement.

72. They have a close relationship with their brothers and sister and it is strongly in their interests for that relationship to continue. The local authority in my view needs to firm up on their commitment to placing them only with carers who are willing to accommodate sibling contact, at least in accordance with the plans. The particular circumstances of this group of five siblings means that it will be in D and E’s best interests throughout their life maintain the sibling bonds that currently exist and to allow them to develop and deepen as the children grow. That needs to be a commitment in the search for prospective adopters. D and E are close to A, B and C and are growing closer. If, as one might expect, the children would be encouraged to develop empathy for their siblings in a new home, one might expect that in an adoptive placement they will be acutely conscious of the fact that the two brothers are living in long-term foster care and that their sister has a disability. It seems to me far more likely that an adoptive placement would experience difficulties with the children were they to be denied an ongoing relationship with their siblings; the feelings of guilt, curiosity, anxiety would I think be far more powerful if they were unable to maintain that relationship and so sibling contact must be a priority. I would have thought a pattern which fits with the children’s lives would be that they should have sibling contact at least every main school holiday.

73. The children also have a relationship with their parents. They have enjoyed and benefited from their contact with them since they have been in care. Although it would probably be of benefit to the children for that relationship to continue, that is outweighed by the children’s need for as secure a placement as possible. The issues relating to the parents and their ongoing relationship with D and E are much more nuanced given the issues relating to risk of harm and the parents’ responsibility for the children situation. It is entirely conceivable that the children may reject their parents when they understand more of what their parents were responsible for and careful consideration needs to be given to the extent to which the children could have contact with their parents without building in a future realisation of the dark side of their parents with the possible feelings of anger that they had had a relationship which they might later reject. The parents will have to think very carefully about what they can do to apologise and make amends for what they did to their children. That might provide some foundation for the children coming to terms and having a balanced view of their parents.

74. No member of their birth family is able to offer them a home. Although their mother wished to look after them, the evidence is that she is unable to do so and she accepts this and given the parents’ current issues there is nothing to suggest they could make the necessary changes in their lives to put them in a position to ever offer care for them in the foreseeable future. Their strong wish is that D and E should not be adopted. It is safe to assume that the other children would not want them to be adopted although A and B might feel that even if they could not be adopted perhaps their brother and sister should be given that chance. If they cannot all live together, they would want to carry on seeing them regularly.

75. These children entered the care system 786 days ago and on that calculation would have another 3-4 months to go to hit the average. The statistics provided to me and the research provide some limited assistance but it is limited. I accept that there are shortages of both adoptive placements and foster placements. I accept that the older the child at the time of adoptive placement the greater is the risk of placement disruption or breakdown. However this statement a huge amount of underlying variation. In this case D has been in foster care since 2022 when he was two years and nine months of age. His exposure to abuse at home ended at that point. E was nine months old at this point in time. They have not suffered abuse since although of course they have suffered instability of placement and this has caused them harm. They have been in a stable placement for the last year. Neither have identifiable emotional or behavioural issues or other complicating health conditions. The reverse side of the coin in particular in relation to D, although it applies to E to a lesser degree, is the extent of his relationship with his parents and his siblings and whether he will be able to settle in and adoptive placement. It is clear that he values those relationships but there is no indication from the foster carers that he craves a return to his parents which for a child of his age might be an expectation nor is he demanding to see significantly more of them. He seems to have managed the reduction in contact with his parents and siblings reasonably well. The accounts of him talking about what is going to leave behind and what he must take with him suggest, as might be expected at his age a focus on the present and his immediate environment rather than a preoccupation, his relationships with his brother and his parents or his identity are obvious for an adolescent or a teenager. In any event if he were to be reassured that his relationship with his siblings and his parents continue to some degree this would seem likely to meet his need for an ongoing relationship in order to preserve those ties and to reassure him that his sister, his brothers and parents were fine. Those seem to me to be relevant factors in considering whether he is more likely or less likely to settle in an adoptive family. Thus although D will be 5+ at the point of adoption my valuation is that he would fall into the cohort of children who are at less risk of disruption. For E she is likely to fall into the cohort which is at very low risk of disruption. The view of the family finding team was that on the spectrum of whether they were more likely or less likely to find an adoptive placement for the children was that they were towards the more likely end of the spectrum and I can understand why they would place them there given the descriptions of the children and the relative lack of problems that they carry with them. The update from the family finding team suggested a quite dramatic drop in the number of possible placements available either locally regionally or nationally although that was tempered by an assertion that a new cohort of prospective adopters were going to panel. Overall it seems to me that D and E are likely to fall into the group of children who are more likely to be adopted than not and that they are in the cohort who are less likely to be subject to disruption or placement breakdown. On the opposite side of the equation I accept that in general the risk of the children experiencing additional moves in foster care are higher than in adoption purely arising from the fact that adopters are inherently less likely to experience changes in their lives which cause them to terminate the placement whereas foster carers are not only subject to re-approval processes but the ordinary vicissitude in life may cause them to give notice whereas in an adoptive placement the family would weather the storm. Whilst the apparent shortage of adopters is a concern it is also a concern for foster carers and there is a risk either way that the children will wait. B and A with the behavioural issues they carry will be harder to place than D and E but that does not mean it will be easy to find foster carers for D and E. I agree that there may be some distinction between the impact on D and E of delay in seeking adopters and foster carers in that it is conceivable D might appreciate the distinction and say to himself what is wrong with me that nobody wants me to be their son rather than nobody wants to look after me, I think this is very hard to define or place weight on. Delay will cause them instability and uncertainty whatever they are waiting for and it seems to me the difference is of little relevance to the overall welfare balance.

76. D and E would be an atypical profile for long term fostering simply because they are more typical of children who would be considered suitable for adoption because they are currently under 5 and have no diagnosed emotional or behavioural of physical conditions which would present as an obstacle to prospective adopters. This might make them very much more attractive to long-term foster carers – who would in effect be paid fostering rates for fostering children with a fairly limited set of needs beyond those of any other child. However it might also make them unattractive because long-term foster carers would in my experience usually be offering themselves as such because they felt a vocation to offer a home to a child who couldn’t be adopted because they had issues which needed skilled foster care – they might thus see it as a waste of their valuable resource to foster such children.

77. Although the parents present a high risk to the children were they to be caring for them the risks they present in supervised contact are very limited and the contact notes show that they are capable of not only providing a good time but reassurance and warmth to the children. The fact that they have been committed to contact for over two years and have not in that time sought to undermine the children’s foster placements suggest that they would present a low risk at present in terms of actively undermining an adoptive placement although I am less sure of where the risk would lie in terms of being able to actively support the children in a new adoptive family. They could do much to help the children understand their past

78. The advantages of long-term fostering for D and E include that it would enable the children to remain members of their birth family whilst receiving high-quality care without being exposed to the risk of significant harm. It would allow them to continue having regular contact with their siblings, probably more frequently than the minimum of a yearly visit which the local authority is proposing under its adoption plan. Given the close relationship between this sibling group, that is a significant advantage in this case. It would also allow them to continue to have direct contact with their parents. In due course, if the parents were able to address their problems it might be possible for them to play a greater role in the children’s lives, that is no more than speculation at this stage and cannot carry any significant weight in the balancing exercise.

79. I do not accept that the children are not suffering harm and would not suffer harm whilst waiting for a LTF which they would suffer if waiting for adoption. Whilst I can see that a child might possibly distinguish (there is no evidence) between waiting to be adopted or waiting for a permanent foster placement I think the distinction is probably limited. The harm comes from a sense of living in limbo, of knowing that the adults you live with are not your mum and dad and may be gone, that your school, friends, bedroom, pets, local activities are all perhaps moments away from being changed entirely and you may be starting afresh with people who you don’t know. It is the fear of the unknown – whilst Ian Fleming might say anxiety is a dividend paid to disaster before it is due I don’t think that 3- and 5-year-olds’ minds operate in that logical way.

80. The disadvantages of long-term fostering include the fact that it would not provide the same degree of permanence and security for D and E nor would it enable them to experience the sense of belonging which adoption can afford. The children would legally remain in the care of the local authority indefinitely throughout their minority unless and until the care orders were discharged. They would continue to have social workers involved in their lives and be subject to regular “looked after” reviews. Many children thrive in foster care, and some stay with the same carers throughout their childhood. Unfortunately, however, many children in care experience disruptive moves of placement, as these children have already experienced whilst in care under interim orders. Having regard to their welfare throughout their lives, although many children establish close relationships with their foster carers which continue into adulthood, they are not lifelong members of the family in the same way as adopted children are normally lifelong members of their adoptive families. Despite increased resources devoted to care leavers, it is recognised that they remain more vulnerable to social problems than the rest of the young adult population. In reality the children will not belong to anyone or anywhere. Their relationship with their parents will be wholly insufficient to allow them to feel a part of that family – and it would be wrong to maintain that in the sense that there is no foreseeable prospect of the parents addressing their underlying problems which led them to harm the children and renders them incapable of caring for them . Nor would relationships with their brothers do that although it would promote the idea they are part of an ongoing sibling group on a more regular basis. But this will not give them roots, a sense of belonging to a family, a sense that these parents and the rest are there for them for life, roots, security, trust. LTF can replicate some aspects of any component but it will inevitably be attenuated because they are not their parents and the link ends when they cease to be a looked after child.

81. Whilst I would not under-estimate the importance to the children about what they say about living with their siblings and living with mummy and daddy and playing with mummy and daddy, A and B also rated being in foster care at 10, playing with friends and Halloween at the same level. They also made several comments about not liking being hurt by their mum and dad and not liking it when they hurt their siblings. This would suggest that whilst the sibling relationship is less complicated the relationship with the parents is complex both objectively and subjectively. That suggests that maintaining that relationship would be more nuanced than the parents suggest although maintaining the sibling relationship less so.

82. Whilst Ms Haider-Shah is right that the statutes do not give any preference to adoption as a long term placement for children in care the case-law does reflect the accumulated learning from a wide variety of sources that adoption provides a greater degree of permanence (in physical, emotional and psychological terms) over long term foster care and that for most children this will better promote their life-long welfare than long term fostering. Within that orthodoxy though is a built in recognition that every case is fact specific and that there may exist factors which in that case demonstrate that long term foster care will better promote their life-long welfare interests. In this case as it happens we have 3 specific examples of this in that B and A and C have all been made subject to care orders on the basis of long term fostering. In relation to B and A – although I hesitate to summarise – this was because their ages and the extent of the behavioural and emotional issues meant adoption was not considered achievable A critical component in the analysis – and one which Ms Haider Shah rather side-steps is the potential benefits of adoption for these particular children.

83. The advantages of adoption in accordance with the local authority’s plan include that it would provide the children with a permanent home and a higher degree of stability and security than long-term fostering can ever bestow. D and E would become members of the adoptive family for ever and would have the opportunity to acquire a sense of belonging to the family to a degree that a foster child can never experience. As permanent members of the adoptive family, they would maintain this sense of belonging through into adulthood. Through the matching process, adopters would be identified who are able to meet the particular needs of the children. There is a high likelihood that all of their physical, emotional and educational needs would be met. In this case, as the local authority’s plan includes continuing sibling contact, D and E would be able to maintain a relationship with their brothers and sister which will continue into adulthood. The continuing contact would help the children grow up with a clearer understanding of their background and identity. This is not a case in which there is going to be a complete severance of their ties with their birth family.

84. It is usually said that children with a secure attachment are better able to transfer their attachment to a new carer. Dr Willemsen said he wished to see the children in their placements to better understand their attachment needs but this was not pursued.

85. The submission that there is a higher chance of an adoption breaking down due to the emergence of emotional/psychological difficulties in the children than in foster care because there is more support available in foster care than to adopters is a false analogy. The expected psychological benefits to children of having a forever family is precisely that it promotes their psychological well-being at a level which is greater than a foster family can and so the risk of emotional or behavioural or psychiatric deterioration is lessened by the fact of belonging, having an attachment to parents, of being a part of a family which is ever present and permanent. Although Long Term Fostering plainly can provide a sense of permanence it does not provide a mum and dad , brothers/sister,. cousins , grandparents, a family home or all of the rest of the security and sense of belonging which comes with a family and which is key to the healthy emotional development of children.

86. The disadvantages of adoption for D and E include that they would cease to be members of their birth family. Although they would maintain a relationship with their siblings through contact, there would be a severance of the legal relationship. Under the local authority’s plan, the children would not necessarily have direct contact with their parents. These factors would leave the children feeling a sense of loss, which may be present at the start of the placement and then subside, or may grow as they enter adolescence and come to question why they have been treated differently from their siblings. Furthermore, although most adoptions succeed, a number of adoptive placements break down. Not every adopted child feels the same sense of belonging to a new family. Conclusion

87. Having considered the relevant factors in the statutory welfare checklist, and analysed the advantages and disadvantages of the two options, I have come to the clear conclusion that, notwithstanding the close relationships that D and E currently have with their siblings and the more nuanced but warm relationship with their parents and the other disadvantages of adoption, adoption is the only option which meets the children’s needs. D and E need a placement that will provide them with the greatest level of security and a family in which they can grow up feeling a sense of belonging. This is particularly highlighted in this case by the reports about Ds insecurities. They also need a placement which will enable them to maintain a relationship with their brothers through regular contact. Long-term fostering can meet the latter need but not the former to anything like the same extent. Adoption is the only option which meets both of these needs. This will mean that the children may no longer have direct contact with their parents – that will have to be assessed and will depend largely on whether the parents can be trusted to support an adoption which in turn may reassure prospective adopters that the children’s placement would be made more secure, not less, by parental contact. The care plan should provide that it is a pre-requisite of prospective adopters that they should be prepared to promote sibling contact as that will – as explained above- be likely to significantly enhance the security of the placement particularly as the children enter adolescence. This will, of course, be an interference with the parents Article 8 rights, but that interference is necessary and proportionate in order to secure the children’s right to a stable and secure family life.

88. The parents do not consent to the making of placement orders. Under s.52 of the 2002 Act, a court can dispense with a parent’s consent in these circumstances if satisfied that the child’s welfare requires it. I conclude that, in each case, the welfare of D and E requires that I dispense with the parents’ consent to the placement orders.

89. I will therefore make care and placement orders for D and E. The care plans will need revising to spell out the contact provisions. I do not at this stage consider an order is needed under s.26 if that care plans are amended and if the section of this judgment which analyses the need for contact is incorporated into the care plan or the Profile. I will reserve any adoption proceedings to myself. On balance I think prospective adopters should be allowed to see my reasoning and to discuss it with social workers rather than to immediately place an obligation. That seems to strike the right balance.

90. That is my judgment.