Northern Ireland

Introduction

This case concerned Trust applications for care orders and orders freeing for adoption in respect of two children (‘the boy’, aged four, and ‘the girl’, aged 16 months), the seventh and eighth of eight children, born to the same biological parents. An interim care order was made in relation to the boy in November 2023 and in respect of the girl in June 2024. The latter was placed with foster carers on discharge from hospital and has never resided with the parents or her other seven siblings. In December 2024, the Trust plan for the boy was adoption and either residential accommodation or long-term foster care for the remaining children, while no care planning decision had been taken in respect of the girl. The subject children were placed with the same foster parents who had declared an intention to make adoption applications in respect of both, in the event of freeing orders being made.

This legal note is in two parts: the first, below, deals with the exposition outlined by the judge – McLaughlin J – of the legal principles generally applicable in applications for care orders and orders freeing for adoption; the second, to be continued in the next issue of Adoption & Fostering, will address the application of those principles to the particular circumstances of the case.

Legal principles

McLaughlin J began by referring to the recent case of A HSC Trust v a Mother and a Father ¹ when he had considered the statutory provisions and case law applying to applications for care orders, with care planning for adoption and applications for freeing orders, in the absence of parental consent. In summary, he advised that applications for care orders are made pursuant to Article 50 Children (NI) Order 1995 and involve a three-stage process of fact finding, threshold and welfare:

At the threshold stage, the court is required to determine, in light of the facts found, whether, at the date of Trust intervention, the child or children are at a risk of significant harm (as defined in the Order), by reason of the care provided to them, not being care which it would be reasonable for a parent to provide. The focus at the threshold stage is upon the risk of significant harm to the child or children. At the welfare stage, the court must decide what, if any, order it should make. Applying the ‘no-order principle’, the court should only make an order where it is satisfied that to do so would be better for the children than making no order [Article 3(5) of the 1995 Order]. In deciding whether to make an order, the court must also take account of the welfare factors (the ‘checklist’, sic) set out in Article 3(4) of the 1995 Order.

McLaughlin J drew attention to the fact that in Northern Ireland the leading decision is derived from A Health Trust v a Mother and Father ⁷ when the court affirmed and applied the approach to proportionality, which required it to analyse and weigh-up, side-by-side, all of the care planning options for the child, including pros and cons. In an application for a freeing order, the test for whether parental consent should be dispensed with – as set out by the House of Lords in Down and Lisburn HSCT v H and another ⁸ – remained the correct approach as had been confirmed by the Court of Appeal in A Health Trust v a Mother and Father. ⁹ This test is an objective one but with subjective elements insofar as it takes account of the individual circumstances of the parent and asks whether a reasonable parent in their position would provide consent. He noted that – as emphasised by the European Court of Human Rights (ECtHR) in a number of cases ¹⁰ – Article 8 will be engaged both at the welfare stage of an application for a care order and when a court is considering whether to make a freeing order. In both cases, the order may only be made where the court is satisfied that it is necessary and proportionate in furtherance of the aim of establishing the permanent living arrangements for the child, in light of the extent of the interference with Article 8 rights. The welfare of the child is then the paramount consideration, the court must explain its decision, having regard to Convention requirements, and a failure to do so may justify an appellate review. ¹¹

McLaughlin J was of the view that the key principle emerging from the ECtHR case law was that any decision to take a child into public care amounted to an Article 8 interference, which must be justified. The relevant public interest against which the proportionality of the measure must be measured is the welfare of the child. This required consideration of the strong public interest in maintaining natural family ties in relationships, alongside the need for the child to grow up in a safe environment. As the period of public care continues, the state authorities have a positive obligation under Article 8 to take the steps necessary to facilitate the possibility of family reunification. However, achievement of reunification is not an obligation in itself. Rather, the state must take only those steps which are necessary in the circumstances to facilitate the possibility of reunification. The state is not obliged to make ‘endless attempts’ at reunification. He summarised by stating that the state welfare authorities were entitled to take the view that an appropriate period of time had been reached after which the best interests of the child could be met through a safe and secure alternative placement, free from the risk of harm and without the child’s situation changing again. Any order made by the court must be necessary and proportionate to the achievement of those public interests, as determined in the individual circumstances of the child. A freeing order being the most intrusive form of interference therefore requires particularly careful scrutiny of the circumstances and clear justification. The best interests and welfare of the child are the primary considerations. Justification requires something more than merely an assessment that it would be better for the child to be adopted than to remain with the parents. The focus must be upon the harm to which the child is likely to be exposed if returned to parental care, as identified at the fact-finding and threshold stages.

In Northern Ireland, as McLaughlin J clarified, the approach of Health and Social Care (HSC) Trusts to decisions on permanence for looked after children is contained in the HSC Regional Operational Permanence Policy 2017–2021. The policy explains that the central aim of permanency planning for looked after children is to ensure that they move quickly from an uncertain care placement to the security of a safe and stable permanent family either with their birth parents, in a kinship placement or with other carers. The guidelines require a permanence plan to be confirmed ‘at the latest by the third Looked After Children Review’ and state that: ¹²

13.5 Attempts at rehabilitation should be based on clear objectives and contracts with parents and must be carefully monitored and recorded if sufficient changes are to occur to facilitate the child’s return home. Comprehensive assessments and interventions should be completed so that a firm plan for permanence is confirmed by the time the child is in placement for 9.5 months (ie. time of the third Looked After Child review).

Comment

Unquestionably, the Trust does have a positive duty to facilitate the possibility of rehabilitation to parental care, but McLaughlin J is of course right when he advises that the state is not obliged to make ‘endless attempts’ at family reunification. The ECtHR established that principle exactly two decades ago ¹⁴ and has reiterated it more recently. ¹⁵ It is always a question of balance as to when such facilitation must give way to alternative permanency care arrangements, and as time passes the welfare principle weighs more heavily in favour of the latter. Having chosen that option, the Trust will now be only too aware that it must invest heavily in the resources necessary to sustain the fostering/adoption placement. The lack of such support was the issue in a 2024 case which concluded with a six-figure compensation award when an adoption placement broke down. ¹⁶