The child’s welfare throughout his life: application of the 2002 welfare checklist A and B v Rotherham Metropolitan Borough Council-

[2014] All ER (D) 86 (Dec)

On 5 December 2014 Mr Justice Holman delivered a judgment which begun thus: “I have been a full time judge of the Family Division for almost twenty years. In all that time, apart from cases concerning serious ill health, I have rarely heard a more harrowing case.”

The child C was removed from his mother at birth. Her partner was named as the father on the birth certificate. Uncontested care and placement orders were made. When C was seven months old he was placed with prospective adopters, A and B, who later applied to adopt him. A few months later a man came forward claiming to be the father, as indeed he was proven to be. He wanted C placed with his sister, who was then subject to an extremely thorough assessment which was positive.

The issue the court had to decide was whether C should be moved to his aunt or be made the subject of an adoption order to A and B. Of the professionals, the local authority social workers and the jointly instructed psychologist favoured adoption. The equivalent of the Director of children’s services and the child’s guardian favoured placement with the aunt. The judge commended the guardian for her “very careful and thorough analysis over many pages of the issues”.

The judge ordered that he be moved to his aunt. In deciding the case, the judge paid scant regard to re B commenting, “In my view that is a debate and territory into which I need not and should not enter.” Rather he considered in some detail the welfare checklist under the Adoption and Children Act 2002, particularly the imperative that “the paramount consideration of the court … must be the child’s welfare, throughout his life.” (Judge’s emphasis). The court” … must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”

The judge concluded, “This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity … She has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.”

He added, “I have found this decision extremely painful, for I sincerely and deeply appreciate the intense grief it will cause to A and B and to their extended families and friends. But I have not, in the end, found it difficult; and, as I said at the outset of this judgement, it is not one which I reach narrowly or marginally.”

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