Abstract
Long-term foster care vs adoption
GL and PH v a Care Trust in the Matter of PH (A minor)
The High Court
McAlinden J
26 April 2019
Introduction
This was the second of two judgments McAlinden J had given on this matter. The first had allowed the appeals of the parents, quashed the care order and the freeing for adoption order and put in place an interim care order. The matter came before him again as all the parties were in agreement that he should determine the appeal on the basis of the materials and submissions already provided and made to the court. The parents remained implacably opposed to an order freeing their child, PH, for adoption, not least because the three older children of the family were being cared for under separate long-term foster care arrangements and, in the parents’ minds, there seemed no justification for treating their youngest child differently, especially when this would effectively cut off regular contact between the children.
Background
PH was born in 2013, the youngest of four. She has three paternal half-siblings, all of whom are in their 30s, residing in England. The parents had been known to social services in Northern Ireland since 2010. There had been issues of: domestic abuse of the mother witnessed by the children; her mental health problems and self-harming behaviours; her physical abuse of one of the children; and her possible drug and alcohol abuse. These, combined with several house moves, eventually precipitated action by social services. All four children were removed from the care of their parents in 2015 following what appears to have been a complete breakdown of normal family life. PH has since been cared for by her current carers and prospective adopters.
Following the initial emergency intervention, the Trust engaged in intensive work with the parents in an effort to address parenting deficits with a view to restoring the children to one or other of their parents, but this work proved unsuccessful.
The possibility of kinship placements including with PH’s half-siblings was explored and found to be non-viable. By March 2017, the Trust had come to the view that PH’s needs were best met by her remaining in the placement and adoption was proposed as the preferred route to achieve permanence. PH was presented to the adoption panel in October 2017 when a best interests recommendation was given and subsequently accepted by the Trust. A LAC Review in November 2017 ratified the care plan as that of adoption and a final care order and freeing for adoption order was made in May 2018.
It was clear that PH did not enjoy a close and strong relationship with her siblings. This was assessed as being chaotic, unstructured, fractious and of poor quality, with PH being bitten, struck, having her hair pulled and being shouted at. In response to such treatment, she behaved very badly and in an unregulated manner. She displayed anxiety prior to contact and required reassurance that her carers remain close at hand. She was anxious and unsettled post-contact. A ‘Together or Apart’ assessment concluded that the children were best placed separately. Parental contact had been reduced with the father having bi-monthly visits, the mother once every three months and sibling contact also every three months. In April 2018, the three older siblings were made the subject of full care orders with care plans of separate long-term foster care.
In contrast to the poor relationships with her parents and siblings, McAlinden J presented the following picture of PH’s relationships with her carers and others: … PH is described in the papers as a happy, chatty, sociable, delightful and articulate child who is very independent and headstrong. Academically, she is considered to be very capable and, additionally, she participates in after-school activities of ballet, speech and drama and singing. To date, she has enjoyed good health and has met all her developmental milestones. She transitioned easily from nursery into school and is considered to be doing well and is happy at school and is now coming to the end of her Primary 2 year. She is very well settled with her foster carers and has been in their care for the last four out of the six years of her life.
Background of statutory law and principles: XHSCT v W and E; 1 and SEHSCT v M 2
McAlinden J opened proceedings by stating the relevant provisions of domestic law: Articles 50 and 3 of the Children Order 1995; and Articles 9, 18 and 16 of the Adoption Order 1987. He drew attention to the need, in circumstances such as the present case where the realistic proposals were long-term foster care or adoption, to conduct a welfare analysis of both proposals in respect of the child: It is a requirement that both proposals are validly considered on their own merits as they affect the particular child. It is not sufficient to state that both long-term foster care and adoption are permanent. There are important distinctions between long-term foster care and adoption that impact on the welfare of a child. The two proposals cannot be equated in terms of what they offer by way of security for a child. … measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child’s best interests … [emphasis added)]
Long-term foster care vs adoption
McAlinden J observed that PH had been cared for by her present carers since just before her second birthday, was now over six years old, did not identify with her birth family and her parental and sibling attachments were not strong. She did identify with and was strongly attached to her long-term carers. She was anxious for reassurance that this would be a permanent arrangement. He could see that being able to fully integrate into the family who had cared for her from the age of two would enhance her sense of belonging and her feelings of security. Against that, he noted the strength of the birth parents’ argument that it would be wrong to treat PH differently from her other three siblings, who were being cared for under long-term foster care arrangements which enabled them to maintain and develop their sibling relationships as well as their relationships with their birth parents. However, he considered that argument to be flawed as it totally ignored the fact that the older three children had a strong sense of attachment and belonging to the birth family, which was essentially absent in the case of PH. Her sense of attachment and belonging was directed towards her carers not her birth family. To try to redirect this to her birth family at this late stage would be confusing, damaging and undermining of the present placement.
Following a consideration of all the complications involved in long-term foster care, including the risk of contact arrangements undermining the foster placement and damaging the child’s psychological welfare, the intrusion and possibly stigmatising effect of social work visits and the large number of different social workers who would inevitably be involved with PH, McAlinden J summarised as follows: As young children mature in the care system in foster care, they may become aware of the lack of permanence of their home arrangements and they can grow up feeling that they do not fully belong in a family. Long-term foster care also subjects children to corporate and bureaucratic parenting, involving monthly statutory visiting, annual medical examinations, LAC reviews every six months and the need to obtain permission for holidays, outings and overnight stays with school friends … Furthermore, as parental responsibilities are shared between the Trust, the foster carers and the birth parents, there is the potential for conflict and disagreements which may ultimately require recourse to the court for determination of issues relating to schooling and holidays … it is recognised that those who have been in the care system long term are more likely to do less well in education, are at a higher risk of experiencing mental health difficulties and are more likely to engage in criminal conduct in later life.
Determination of best interests
Bearing in mind the guidance of the UK Supreme Court
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and its interpretation in subsequent appellate decisions,
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together with the proportionality principle as this had evolved under Article 8 of the European Convention, McAlinden J was clear that a care plan for permanence by adoption was in the best interests of PH: I have no hesitation in concluding that long-term foster care would not serve the interests of the child PH as well as adoption will. The latter option is clearly better than the former. It is not only better, there are issues in this case that make it necessary for adoption to be the chosen option. Nothing less than adoption will do.
Consent and the unreasonable withholding of same
McAlinden J drew attention to Morgan LCJ’s views as to what constituted an unreasonable withholding of consent
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and to the role of the reasonable parent in making such a decision. He referred to the characteristics of the notional reasonable parent as having been expounded on many occasions,
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and to Lord Hailsham’s observation that ‘two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable’.
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Reference was also made to Keegan J’s recent quote
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from an ECHR decision that ‘Article 8 does not require the domestic authorities make endless attempts of family reunification; it only requires that they take all necessary steps that reasonably be demanded to facilitate the reunion of the child and his or her parents …’.
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He reminded the court of the necessity to give precedence to the welfare interests of the child
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and concluded: I am satisfied that two parents standing in the shoes of these parents but with unimpaired insight, perception and understanding of their own deficiencies and their physical, mental and emotional problems, and possessing the ability to evaluate dispassionately the evidence and opinions of the experts and professionals in this case, and being endowed with the intelligence and altruism needed to appreciate that their child's welfare would be so much better served by adoption, and that views expressed on behalf of the child supported such an outcome, could not, if acting reasonably, withhold their consent to adoption in this case.
Held
Care order with the care plan being permanence by adoption and an order freeing the child PH for adoption.
Comment
This was an inevitable outcome for a child who had spent most of her life being cared for by her prospective adopters and for whom a return to parental care, or the possibility of kinship care, was clearly not viable. The judgment, though unusually detailed on the perennial issue of the merits of adoption vs long-term foster care, clearly signposted the judicial preference which in this case seems wholly justified.