Case No. CV11CO0130
Neutral Citation Number: [2011] EWCC 7 (Fam)
IN THE COVENTRY COUNTY COURT
Date:  24th August 2011
Before 
His Honour Judge Clifford Bellamy
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Between:
PGO and FEO
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Coventry City Council
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CW
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RB
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LB and CB (by their Children’s Guardian)
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Miss T McCormack for PGO and FEO
Miss F Judd QC for Coventry City Council
Mr R Lewis for the children
The mother appeared in person
The father did not appear and was not represented
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JUDGMENT

The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of their family must be strictly preserved.

1.	PGO and FEO are local authority foster carers. They apply for adoption orders in respect of two children, LB aged 2¾ (born [a date] November 2008) and his sister CB aged 22 months (born on [a date] October 2009) and to discharge placement orders made by the court in June 2010. 
2.	PGO and FEO have been LB’s foster carers since he was eight weeks old. They have been CB’s foster carers since she was twelve hours old. Their applications are supported by the children’s birth parents, CW and RB, but opposed by Coventry City Council (‘the local authority’) and by the Children’s Guardian, Alison Johnson (‘the guardian’).
The children’s history
3.	Concerns about LB’s care arose soon after his birth. On 17th January 2009 the police removed him from his parents pursuant to their powers under s.46 Children Act 1989. He was placed with PGO and FEO. He has been in their care continuously since that date.
4.	The local authority began care proceedings. The care proceedings were listed for a final hearing before me in October 2009. Although the local authority’s final care plan proposed permanency by way of adoption, by the date of that hearing the local authority had not obtained a ‘best interests’ decision from its Adoption Panel. The final care plan could not have been approved at that stage. An adjournment was inevitable. 
5.	By the date of that final hearing the mother was pregnant. CB was expected to be born later that month. I adjourned the final hearing to 13th April 2010. It was the local authority’s intention to issue care proceedings in respect of CB immediately upon birth. The timetabling directions given were designed to enable the court to determine the futures of both LB and CB at the hearing on 13th April 2010. 
6.	The parents applied to the court for further assessments. I gave permission for a psychological assessment of the parents and an independent social work assessment. Those assessments were negative. 
7.	The local authority finally presented the children to its Adoption Panel on 10th February 2010. The Adoption Panel recommended adoption for both children. Regrettably, the local authority had failed to furnish its Adoption Panel with all of the relevant material. In light of the guidance given by the Court of Appeal in Re B (Placement Order) [2008] 2 FLR 1404 I adjourned the final hearing a second time and directed that the matter be taken back to the Adoption Panel. Following the guidance given by Black J (as she then was) in North Yorkshire County Council v. B [2008] 1 FLR 1645, I ruled out both parents as long-term carers for their children. Adoption became the inevitable outcome.
8.	The third attempt to conclude the matter was on 16th June 2010. At that hearing I approved the local authority’s final care plans for adoption. I made final care orders and placement orders. By the date of that hearing LB had been in PGO and FEO’s care for 17 months and CB for almost eight months. 
9.	Against that background one might have imagined that the local authority’s attempts to find a suitable adoptive placement for these children would have been at an advanced stage. Regrettably, that was not the case. It was not until December 2010 that the local authority finally identified Mr and Mrs A as a possible match for these children. The local authority’s Adoption Panel approved the match on 19th January 2011, exactly two years after LB’s placement with PGO and FEO.
10.	Introductions to Mr and Mrs A began on 15th February 2011. The local authority’s intention was that there should be an intensive period of introduction ending with the children moving into the full-time care of Mrs and Mrs A on Wednesday 23rd February. 
11.	Very late in the afternoon of 22nd February PGO and FEO issued applications for adoption orders and for revocation of the placement orders in respect of both children. The children having been in their care for more than a year, s.42(4) Adoption and Children Act 2002 entitled them to apply for adoption orders without the need to obtain the prior leave of the court.  
12.	The local authority reluctantly agreed not to proceed with placement of the children into the full-time care of Mr and Mrs A until PGO and FEO’s applications had been heard. 
13.	PGO and FEO’s applications came on for hearing before me on 11th March. They had failed to give the three months notice to the local authority required by s.44(2). I therefore dismissed the adoption applications. I decided that the issuing of their applications constituted the giving of notice pursuant to s.44(2). That meant that they could not issue new adoption applications before 22nd May.
14.	The local authority was not willing to leave the children in PGO and FEO’s care until 22nd May. The local authority was lawfully entitled to remove the children from PGO and FEO’s care without any order from the court. PGO and FEO sought an injunction to prevent removal until their adoption applications had been issued and heard. 
15.	After hearing submissions I concluded that the court had the power to grant an injunction to prevent the local authority from removing the children from their care and that in the circumstances of this case it was appropriate for the court to exercise that power. I gave the local authority permission to appeal against my decision.
16.	The local authority’s appeal was heard by the Court of Appeal on 18th April. Judgment was reserved. Judgment was handed down on 22nd June. The Court of Appeal held that although I was correct to conclude that the court has the power to grant an injunction that in determining whether to grant an injunction I had applied that wrong test and that had I applied the correct test the application for an injunction should have been refused – Coventry City Council v PGO and FEO and others [2011] EWCA Civ 729.
17.	By the time the Court of Appeal gave judgment events had moved on. Mr and Mrs A had withdrawn as prospective adopters for LB and CB. PGO and FEO were entitled to issue new adoption applications. Those applications were issued promptly and timetabled through to final hearing beginning on 4th August.
18.	LB and CB now have a younger brother, BB. BB was born on 26th December 2010. The local authority immediately issued care proceedings. 
19.	Prior to BB’s birth the local authority had decided that his parents should be allowed to undertake a residential assessment. That assessment took place at the Cassel Hospital in Richmond. On 9th February the assessment broke down. BB was placed with foster carers. 
20.	The local authority’s final care plan for BB is that he should be placed for adoption. On 18th August I approved the final care plan. I made a care order and a placement order.
21.	BB has had no contact with his older siblings, LB and CB.
22.	The mother is pregnant again. Her next child is due to be born in 2012. The unborn baby will be a full sibling for LB, CB and BB.
Independent Social Work Assessment
23.	On 14th March I gave permission to the applicants to obtain an independent social work assessment. That piece of work has been undertaken by Mrs Kate Lilley. Mrs Lilley has over thirty years experience as a social worker. Her specialist area of work is substitute family care including the preparation and assessment of foster carers and adoptive parents. She was well-chosen for this piece of work.
24.	Mrs Lilley has produced two reports. The first, an interim report, is dated 9th May. The second, which takes the form of a BAAF Prospective Adopter’s Report, is dated 30th June. Mrs Lilley has also given oral evidence at this hearing.
25.	Mrs Lilley does not support PGO and FEO’s application. To state her position in those terms is to put her conclusion too starkly. She identifies a number of positives. However, she also sets out a number of concerns. On balance, she concludes that the positives are outweighed by the concerns. 
26.	I begin with the positives. PGO and FEO’s marriage appears to be secure. They have been together for sixteen years. They have two children of their own, N aged 15 and C aged 13. N and C are emotionally stable, thriving, happy, healthy and well cared for. They are doing well at school. There are no concerns about the way they are being cared for. Mrs Lilley acknowledges that PGO, FEO, N and C love LB and CB. She says that there is ‘no doubt about that’. PGO and FEO are providing good care for them. In her first report Mrs Lilley says that 
‘34. The children are well settled in placement and their attachment to the couple is clear. When discussing [their] motivation to adopt, it was clear that they truly love LB and CB and want what they consider to be the best for them. It is this depth of feeling that has spurred them on to this application…
‘36. Given the couple’s previous experience of parenting and of fostering and their previous positive fostering reviews, [they] clearly have an understanding of the needs of children who are Looked After and the difficulties often faced by their birth parents…’

27.	LB and CB have spent almost their entire lives in PGO and FEO’s care. Mrs Lilley acknowledges that that cannot be ignored. However, she goes on to say that she must ‘balance this with what I have discovered during the course of my assessment’. The main issues which concerned Mrs Lilley can be summarised as follows:
(i)	PGO’s criminal convictions and the difficulties there have been in obtaining CRB checks.
(ii)	PGO’s past relationship with HJ and in particular her allegation that he was violent towards her. 
(iii)	PGO’s lack of any meaningful relationship with the three children of his relationship with HJ and his failure to provide adequate financial support for them.
(iv)	PGO and FEO’s financial position generally and in particular the risk that PGO may have to pay substantial arrears of child support.
(v)	PGO and FEO’s ability to work in partnership with the local authority and other professionals.
The legal framework for fostering services
28.	PGO and FEO have been local authority foster carers since 2004. At all material times the framework within which the local authority’s fostering services were provided were the Fostering Services Regulation 2002 (‘the Regulations’) and the National Minimum Standards for Fostering Services published by the Secretary of State for Health in March 2002. With effect from 1st April 2011 the Regulations have now been replaced by the Fostering Services (England) Regulations 2011 and the national minimum standards by the Fostering Services: National Minimum Standards published by the Secretary of State for Education.
29.	Regulation 27 is headed Assessment of prospective foster parents. So far as is material, regulation 27 provides that
(1)	The fostering service provider shall carry out an assessment of any person whom it considers may be suitable to become a foster parent, in accordance with this regulation.
(2)	If the fostering service provider considers that a person may be suitable to act as a foster parent it shall –
(a)	obtain the information specified in Schedule 3 relating to the prospective foster parent and other members of his household and family, and any other information it considers relevant…
(d)	…consider whether the prospective foster parent is suitable to act as a foster parent and whether his household is suitable for any child in respect of whom approval may be given;
(e)	prepare a written report on him which includes the matters set out in paragraph (4); and
(f)	refer the report to the fostering panel and notify the prospective foster parent accordingly.
(3)	…
(4)	The report referred to in paragraph 2(e) shall include the following matters in relation to the prospective foster parent:
(a)	the information required by Schedule 3 and any other information the  fostering service provider considers relevant;
(b)	the fostering service provider’s assessment of his suitability to act as a foster parent; and
(c)	the fostering service provider’s proposals about the terms and conditions of any approval.
(5)	Subject to paragraph (6), a person shall not be regarded as suitable to act as a foster parent if he or any member of his household aged 18 or over –
(a)	has been convicted of a specified offence committed at the age of 18 or over; or
(b)	has been cautioned by a constable in respect of any such offence which, at the time the caution was given, he admitted.
(6)	…
(7)	In this regulation ‘specified offence’ means –
(a)	an offence against a child; …
(d)	any other offence involving bodily injury to a child other than an offence of common assault or battery…
30.	Regulation 28 is headed Approval of foster parents. So far as is material it provides that
(1)	…
(2)	A fostering service provider shall not approve a person as a foster parent unless –
(a)	it has completed its assessment of the person’s suitability; and
(b)	its fostering panel has considered the application.
(3)	A fostering service provider shall, in deciding whether to approve a person as a foster parent and as to the terms of any approval, take into account the recommendation of its fostering panel.

31.	Schedule 3 to the Regulations is headed ‘Information as to prospective foster parent and other members of his household and family’. At the relevant time, schedule 3 required the fostering service provider to obtain, with respect to each applicant 
‘4. Particulars of the children in his family, whether or not members of his household, and any other children in his household...
‘13. … either 
(a) an enhanced criminal record certificate issued under section 115 of the Police Act 1997 including the matters specified in section 115(6A) of that Act; or 
(b) …’

32.	Regulation 29 is headed Reviews and terminations of approval. So far as is material this regulation provides that:
(1)	The fostering service provider shall review the approval of each foster parent in accordance with this regulation.
(2)	A review shall take place no more than a year after approval, and thereafter whenever the fostering service provider considers it necessary, but at intervals of not more than a year.
(3)	When undertaking a review, the fostering service provider shall -
(a)	make such enquiries and obtain such information as it considers necessary in order to review whether the foster parent continues to be suitable to act as a foster parent and the foster parent’s household continues to be suitable; and
(b)	seek and take into account the views of -
(i)	the foster parent;
(ii)	(subject to the child’s age and understanding) any child placed with the foster parent; and
(iii)	any responsible authority which has within the preceding year placed a child with the foster parent.
(4)	At the conclusion of the review the fostering service provider shall prepare a written report, setting out whether
(a)	the foster parent continues to be suitable to act as a foster parent and the foster parent’s household continues to be suitable; and
(b)   the terms of the foster parent’s approval continue to be appropriate.
(5)	The fostering service provider shall on the occasion of the first review under this regulation, and may on any subsequent review, refer its report to the fostering panel.

33.	In the context of a foster carer’s ongoing development and support, the role of supervision is important. This is underlined by Standard 22 in the National Minimum Standards, the following parts of which are material:
22.1	The fostering service is a managed one which provides supervision for foster carers and helps them to develop their skills.
22.3	Each approved foster carer is supervised by a named, appropriately qualified social worker and has access to adequate social work and other professional support, information and advice to enable her or him to provide consistent, high quality care of a child or young person placed in her or his home. The supervising social worker ensures each carer she or he supervises is informed in writing of, and accepts, understands and operates within, all standards, policies and guidance agreed by the fostering service.
22.6	Supervising social workers meet regularly with foster carers. Meetings have a clear purpose and provide the opportunity to supervise the foster carers’ work. Foster carers’ files include records of supervisory meetings. There are occasional unannounced visits, at least one each year.

34.	Having set out the relevant framework I now return to the concerns raised by Mrs Lilley.
PGO’s criminal record
35.	PGO has a criminal record. Between August 1987 and May 1989 he appeared before the criminal courts on five occasions. In the context of the assessment the local authority’s fostering service was required to undertake, the most serious of the offences was an offence of wounding contrary to section 20 Offences Against the Person Act 1861 for which he was sent to a Young Offenders Institution for six months. The most notable of his other convictions include three offences of taking a conveyance without authority, five offences of theft and one of handling stolen goods. None of the convictions was for a ‘specified offence’ for the purpose of regulation 27(5).
36.	PGO is now aged 42. He was aged 18 at the date of his first conviction and aged 20 at the date of his final conviction. Save for a conviction for a minor road traffic offence there is no evidence that he has been involved in any criminal activity since 1989. 
37.	The local authority’s Form F assessment of PGO and FEO was completed in March 2004. The assessing social worker was Mr D. PGO disclosed that he had a criminal record and that he had received a custodial sentence. He also disclosed name changes. An enhanced CRB check was undertaken. The request for disclosure was completed by the local authority. It was not completed accurately. The CRB report stated that PGO did not have any criminal convictions. I am satisfied that this was not the result of misleading or incomplete information provided by PGO. 
38.	PGO and FEO’s application was considered by the Fostering Panel on 19th April 2004. The minutes record that
‘Mr D was asked about the police checks, which he confirmed are back and are clear. PGO has completed another CRB form in his previous name, which they are waiting on.’

Given the fact that PGO had disclosed his conviction and imprisonment for an offence of wounding, the Fostering Panel’s approach to this issue would seem to have been remarkably casual. I am satisfied that at the time of PGO’s approval as a foster carer the local authority did not have before it formal confirmation of the full details of his criminal record.
39.	The local authority undertook an updated CRB check in 2007. It has been suggested by the local authority that PGO did not co-operate. I am satisfied that he did co-operate. This check produced full details of PGO’s criminal record.
40.	For the sake of completeness it is appropriate to record that PGO possesses a number of firearms for which he holds a firearms certificate. His current certificate runs until 2013. He has at all times been open with the local authority about his possession of these weapons and has produced his certificate for inspection when required.
41.	Mrs Lilley said that given the conviction for wounding she was surprised that PGO had been approved as a foster carer. At the very least, she was surprised that his criminal record had not been more thoroughly investigated and that it had not played a bigger part in the assessment. As she put it, the Form F assessment ‘had gaping holes in it’. She notes that ‘no review appears to have considered the questions relating to PGO’s CRB status’. Those points are well made.
PGO’s relationship with HJ
42.	Between 1990 and 1995 PGO was in a relationship with HJ. They had three children together, R now aged 19, S now aged 17 and T now aged 15. When applying for approval as a foster carer PGO disclosed both the relationship and the fact that he has three children from that relationship.
43.	The local authority did not take steps to contact HJ. Mrs Lilley expressed considerable surprise about this. In her second report Mrs Lilley says that
‘Following the Part 8 enquiry in Brighton and Hove in 2001, taking up a reference about a prospective adopter or foster carer from an ex-partner where there has been a child living, has become standard social work practice. I cannot account for why this was not done in 2003/4 when PGO and FEO first made application to foster given that PGO had disclosed that he had a further 3 children…’

The reference to the ‘enquiry in Brighton and Hove’ is a reference to an Area Child Protection Committee report published in October 2001 following an enquiry into the death of an adopted child as a result of abuse by his adopters. Amongst its findings the enquiry report was critical of the fact that in the course of approving the prospective adopters local authority social workers had not interviewed the prospective adoptive father’s former wife. 
44.	The potential significance of the local authority’s failure to interview HJ became apparent in 2007 when, having heard that PGO was a local authority foster carer, HJ contacted the local authority to inform them that during their relationship together PGO had been violent towards her. She also alleged that since their separation PGO had shown no interest in their three daughters and that he had failed to provide any financial support for them.
45.	Investigation of the allegations was overseen by Ms A, the Fostering Team Manager. The local authority accepts that in the course of its investigation although PGO was interviewed, HJ was not.  On 22nd January 2008 Ms A wrote to HJ to inform her that ‘the allegation regarding PGO has been investigated and there are no concerns’. The local authority’s ‘investigation’ was fundamentally flawed. It was a wholly inadequate response to HJ’s complaint. 
46.	HJ first set out the details of her allegations in a letter to the local authority dated 22nd February 2008. She set them out again in a witness statement prepared for these proceedings, dated 22nd July 2011. She also gave oral evidence.
47.	HJ says that she met PGO in early 1990. She alleges three specific incidents:
(i)	that on 14th February 1990 PGO kicked and smashed a mirror;
(ii)	that soon after that first incident there was a second incident in which PGO threw her against a wall causing an injury above her right eye and had then hit her in the face causing an injury to her left eye
(iii)	that on another occasion in the ‘spring of 1990’ he grabbed her by the hair, tried to drag her out of the house and then put a gun to her head.
HJ claims to have sought the assistance of the police as a result of these incidents. After the third incident she sought refuge at a women’s refuge.
48.	PGO accepts that his relationship with HJ was ‘fiery’ but denies that he was violent towards her. On the contrary, he alleges that there were times when she was violent towards him, referring to one occasion when she had stabbed him in the hand with a fork. HJ admits that she attacked him with a fork but says that it was an act of self-defence.
49.	Notwithstanding the alleged violence in 1990 and the fact that they separated for a while, they subsequently reconciled and had three children together. They finally separated in 1995. According to HJ (though denied by PGO), even after their final separation PGO was a frequent visitor to her home. His visits were not only during the daytime, to see the children, but also late at night when the children were in bed. There is no suggestion that HJ felt the need of protection during these visits. She did not apply to the court for an injunction under Part IV Family Law Act 1996. She did not call the police when he visited her home. Although she claims she did not welcome these visits her evidence suggests that she willingly allowed him into her home and that she had no fear of him.
50.	The longer HJ’s evidence went on the more it became clear that she harbours a considerable degree of bitterness and hostility towards PGO. Whilst such feelings may be justified as a result of PGO’s failure to maintain his relationship with and provide support for their three children (and that is a matter I turn to next) I am satisfied that those feelings have coloured HJ’s evidence concerning her allegations of domestic violence.
51.	But for these current proceedings it is probable that that local authority’s ‘investigation’ in 2007 would have been the last word on HJ’s complaint. However, a Strategy Meeting held on 27th May 2011 decided that the complaint should be re-investigated. That piece of work was assigned to Mrs Menna Davies, a social work team leader. Mrs Davies’ report is dated 30th June 2011. 
52.	In undertaking her investigation Mrs Davies laboured under the handicap that the events she was investigating occurred some twenty years ago. Mrs Davies has contacted the police. There are no records of any police involvement with HJ and PGO during the years from 1990 to 1995. So far as concerns the allegations of domestic violence, the only evidence she has been able to find is confirmation from workers at a women’s refuge, that HJ spent a period of time as a resident there in 1990. In her report Mrs Davies says that HJ’s stay there ‘would have been as a result of domestic violence.’ In her oral evidence she conceded that, at best, the fact that HJ spent time at a refuge proves that at that time she was alleging that she had been the victim of domestic abuse.
53.	I did not find HJ to be a reliable witness. I am not satisfied that the three incidents she described occurred as she describes them. I accept that her relationship with PGO was, to use PGO’s word, ‘fiery’. I am satisfied that there was some violence between them. However, the fact that HJ so readily reconciled with PGO, that she proceeded to have three children by him, that according to her she continued to receive PGO into her home even after their final separation and that she did not seek the protection of the court nor even seek legal advice as a result of the alleged abuse, all lead me to the conclusion that any violence which took place was as the lower end of the spectrum of domestic abuse.
PGO’s relationship with his three older children
54.	At the time of his initial assessment PGO was completely open with the local authority about his past relationship with HJ and about the fact that they had had three children together. Had the local authority’s initial assessment of PGO been as thorough and professional as it ought to have been, it would have discovered that PGO’s three children R, S and T were all known to Social Care. In her investigation report, Mrs Davies says that she has,
‘been able to verify that HJ’s four daughters, three of whom were the children of PGO were receiving respite care with a foster carer…I have been unable to verify the details as the files no longer exist.
I have been able to verify that at the time that the family were receiving services of support…PGO’s mother looked after the children whils (sic) HJ was in hospital. This was with the knowledge of Social Care. HJ maintains that [PGO’s] family knew that the children were receiving services from social care.’

55.	PGO has had no meaningful contact with his three older daughters since 1996. In the initial Form F assessment, the assessing social worker records the following
‘Aged around 20 PGO began a relationship with a…woman who already had a child. Three more children were born whilst they were together. Two of whom PGO accepts were his and one whose parentage was in question…PGO did not persue (sic) the matter [of contact] through the courts as he felt it would not be helpful to the children. I spoke with PGO in depth on two occasions about the previous relationship and his position re the children of that relationship. At the time he felt powerless to push the issue of contact. He now has his family life and although FEO and PGO talk about, and agree that one day the children of that relationship will want to see him and they will have to tell C and N about them, he does not know how he will react. PGO feels sure that R, S and T seeing [him] would not be something their mother would encourage or allow during their childhood. He believes they will have been “turned against him”. The children do not have any contact with him, none is planned and I have not endevoured (sic) to seek their view.’

56.	In light of HJ’s oral evidence it is clear that PGO’s belief that she would turn the children against him has some basis in fact. She said that she has been very open with the children about her anger towards him. She has told them that he has never paid any maintenance for them. She has taken some of the children with her to hearings before the First-Tier Tribunal Child Support. When recently interviewed by Mrs Davies about her allegations of domestic violence, she allowed the children to be present. She told me that she is ‘not going to hide stuff from them’. I have little doubt that that has been the case for years.
57.	Until a date in or around October 1996 PGO had regular contact with his older three children. The contact was modest (two or three hours a week) but it happened and it was regular. At about that time there was a meeting between HJ and FEO. It took place at HJ’s home. It was she who wanted that meeting. She alleged that PGO had continued to see her even after they had separated. She gave details. FEO was confident that this was not true. She offered to take HJ back to her own home so that she could confront PGO. HJ agreed. The meeting that took place was acrimonious. PGO and FEO both say that HJ’s intention at that meeting had been to try to persuade PGO to go back to her. At one point HJ said to PGO, ‘as long as you are with that bitch you’ll never see your children again’. HJ agreed that after this meeting she had stopped PGO from seeing his children. However, she said this was because he wasn’t paying maintenance for the children and not because of his refusal to resume their relationship.
58.	PGO says that after contact broke down he saw a solicitor. He could not remember which solicitor. His solicitor wrote to HJ and suggested that they attend mediation. She refused. He was advised by his solicitor that even if he pursued an application for contact through the court the best he could hope for would be supervised contact at a contact centre. He could not afford to pay a solicitor to take the matter to court for him. 
59.	Both Mrs Lilley and the guardian are troubled by PGO’s failure to pursue this issue. Mrs Lilley says
‘I am concerned that PGO, having offered little parenting to his own three children from his previous relationship with whom he has no contact now seeks to adopt a further two children. What message does this give to both his birth children and to the adopted children who may also query why their birth parents are not bringing them up?’

Mrs Lilly has met with HJ and with her children. She reports that his older children feel as if he has never been interested in them. 
60.	The guardian makes a similar point. She says that it is her view 
‘that PGO has lost sight of the needs of his children in this dispute and he showed no empathy regarding any financial difficulties they may have experienced during their childhood…PGO considers that there is hope that he will be reconciled with his daughters at some point. He places responsibility on HJ for influencing and poisoning his daughters against him. There is probably some truth in this view, but it saddens me to report that PGO shows only minimal empathy and emotional regard for the situation that his daughters have found themselves in…Their childhood difficulties including time in foster care will have undoubtedly had an impact upon them and PGO presents as disassociated from that situation. I acknowledge that he may have put himself off from any reflection as it is too painful.’

61.	There is no doubt that PGO could have done more to try to maintain his relationship with the children after HJ stopped contact in 1996. Even if he were not entitled to public funding, he could have made an application to the court as a litigant in person. Some fathers would have done just that. However, it is appropriate to make the point that in my experience where a mother unilaterally stops contact and evinces hostility to attempts to reinstate it, some fathers find it easier to walk away. Often they rationalise their decision by convincing themselves that that is the best decision for the children.
PGO’s financial support for his three older children
62.	There is very little evidence to suggest that PGO has ever made a significant contribution to the financial support of his children. Whatever modest contribution he may have made before contact stopped came to an end after contact stopped. 
63.	HJ made an application to the Child Support Agency (‘the CSA’). The history of the CSA’s involvement is unclear and poorly evidenced. There is no documented CSA history going back earlier than 2009. There is very little that can be said with confidence about the CSA’s involvement with this family. What can be said is that, firstly, assessments that have been made in the past have been challenged by PGO, sometimes successfully. Secondly, that in 2010 the First-Tier Tribunal Child Support allowed a departure application ‘on the basis of lifestyle inconsistent with declared income’. Thirdly, that as a result of that decision there are now said to be arrears outstanding of some £23,000. Fourthly, that those arrears are currently subject to an appeal. No date has yet been fixed for the hearing of that appeal. Fifthly, that the most recent assessment, dated 2nd August 2011, is a nil assessment. It appears to be the case that over the years there have been several nil assessments.
64.	The local authority contends that not only has PGO failed to provide adequate financial support for his three older children but he has given the impression that he has not wanted to provide for his children and has fought vigorously to avoid having to pay. I find that there is more than a grain of truth in that analysis. I am satisfied that PGO has shown a marked reluctance to contribute to the financial support of his older three children and that that was the case even before contact was so abruptly terminated by HJ in 1996.
65.	Mrs Lilley made the point that the standard of living and lifestyle enjoyed in PGO and FEO’s household is very different to that experienced by PGO’s older children. They go on foreign holidays. N has a horse (albeit bought for her by her grandparents). C has a Quad Bike. They are able to go out for meals. They run two vehicles. It is factors such as these that lead his older children to feel that their father hasn’t shown any sense of responsibility towards them. Although PGO has ‘intellectually acknowledged his responsibility’ as their birth father, Mrs Lilley could see little evidence that he had done more than that. In the event that PGO and FEO were allowed to adopt LB and CB, Mrs Lilley is unsure how confident one can be about PGO’s commitment to them in the medium to long term.
PGO and FEO’s financial position
66.	This leads on directly to consideration of PGO and FEO’s financial position. They live in a ten bedroom farmhouse. The property is rented. It was in a run-down state when they took on the tenancy and that was reflected in the rent. PGO and FEO have recently signed a six-year extension to the lease. The rent is £700 per month. They receive £500 per month housing benefit.
67.	PGO runs his own business. He is a sole trader. It is common ground, conceded even by HJ, that he works very hard. He has produced his business accounts for the years ending 31st March 2007 to 31st March 2011. There are a number of points of interest to note from the accounts. The first is that the trading accounts show that the business does not pay out any salaries, not even to PGO. On the face of it, his only source of income from the business is taken by means of reducing the director’s current account. In the year to 31st March 2011 the director’s current account reduced by £4,000. The business made a loss around £6,000 in the year to 31st March 2010 and a profit of around £6,500 in the year to 31st March 2011.
68.	In addition to the very modest income generated by the business, PGO and FEO receive a fostering allowance of £1672 per month for LB and CB, welfare tax credit and child benefit for their own two children. As I noted earlier, they also receive housing benefit. 
69.	There would inevitably be a reduction in PGO and FEO’s household income if they were to adopt LB and CB. At that point they would lose their fostering allowance and would instead receive an adoption allowance of £881 per month for two years. Both Mrs Lilley and the guardian express concerns about the stress on the family caused by the uncertainty around the debt to the CSA. Assessing PGO and FEO’s financial stability is an important part of the assessment of their ability to offer LB and CB a secure future.
70.	The local authority would go further than that and contend that there is a complete lack of transparency about PGO and FEO’s financial position. In the original Form F assessment in 2004 the assessing social worker reports that
‘The family endeavours to go on holiday to Florida each year. PGO researches, books and organises where, and when they will go…PGO deals with the finances of the home and describes a comfortable but not extravagant financial position…’

In their oral evidence both PGO and FEO deny saying that they have been to Florida each year. They say that they have been misreported. They say they have only had three foreign holidays in the last sixteen years. However, I note from the minutes of the Fostering Panel meeting on 19th April 2004 that in discussion with PGO and FEO one member of the Panel
‘noted that they went to Florida every year and began to explain the department may not be able to provide funding. PGO replied that he would not expect the department to pay – if they were allowed to take a foster child.’

71.	It is impossible to reach any firm conclusions about PGO and FEO’s true financial position. The most that can be said is that they are opaque. 
72.	I am satisfied that if the child support arrears of £23,000 are found to be payable then PGO and FEO do not have the resources to pay them. They told the court that in that event they would receive assistance from FEO’s parents and from PGO’s brother. At the time of the hearing there was no evidence before the court of the extent of any bail-out that may be available. Ten days after closing submissions PGO and FEO’s counsel circulated a letter from FEO’s parents, Mr and Mrs X, confirming that they would provide an interest-free loan to PGO and FEO in the event that the arrears should become payable. That evidence could and should have been provided before this hearing started. That evidence could then have been tested under cross-examination.
PGO and FEO’s relationship with the local authority
73.	Concerns have also been expressed about PGO and FEO’s relationship with the local authority and about their ability to work openly with professionals. In considering this issue I begin by considering the Fostering Service Provider’s annual reports on PGO and FEO.
Fostering Service Provider’s Annual Reports
74.	Regulation 29(2) requires that a fostering service provider should undertake a review of its approved foster carers at least once a year. The outcome of the first review must be referred to the Fostering Panel. Good practice requires that any significant concerns about an approved foster carer should be referred to the Fostering Panel.
75.	The local authority’s records of its reviews of PGO and FEO suggest that it has failed to comply with the obligation to undertake an annual review. The local authority has produced copies of the reviews undertaken in 2005, 2006 and 2009. There is some evidence that a review was undertaken in 2008 but the review report cannot be found. No annual reviews were undertaken in 2007 or 2010. 
76.	The reviews that have been undertaken have been positive.
Criticisms of PGO and FEO’s performance as foster carers
77.	The local authority relies upon the fact that there have in the past been concerns about PGO and FEO’s performance as foster carers. Those concerns are not reflected in the annual Foster Home Reviews that are available. The 2005 review noted that 
‘The current placement social worker felt that given that these carers are new carers, they have done remarkable (sic) well with these children and have coped really well with birth family attitudes towards them and have worked professional (sic) in terms how they approached issues.’

78.	The 2006 review noted that
‘PGO and FEO, continue to offer a good resource for younger children to Children & Families Placement Service. They have managed two sets of siblings and although I am aware there have been some difficulties, they have offered stability to the children in placement.’

I deal with the ‘difficulties’ referred to later. 
79.	The 2008 review is missing though there is a letter from the Registered Manager for Fostering Services, Mrs S, to PGO and FEO, dated 6th February 2008 in which she says that
‘Helen has passed me your recent Foster Home Review. It is evidence that you continue to provide skilled and effective care to Coventry’s Looked After children. I was pleased to read that you continue to advocate for the children placed with you and that you have welcomed the support of Helen during this year.’

80.	The most recent annual review, dated June 2009, notes that
‘The carers have shown they are flexible and committed to helping looked after children as shown in the compliments they have received.’

81.	As for the ‘difficulty’ noted in the 2006 report, this related to a disagreement between PGO and FEO and the social worker for the S children whom they were fostering at that time. The report notes that
‘It appears that the concerns raised by the Social Worker are totally unfounded. A meeting on 25/07/06 with District workers & FPS workers including managers found that there was no finding of facts.’

The same issues, relating to the same social worker, were considered again in the 2009 annual review. The response was the same. The review notes
‘Many petty complaints about the care of the children and the discontent of the SW in relation to communication and what she perceived as non-compliance with the rehab programme…Each issue was investigated and treated in accordance with its low priority – nothing was found to be true or tangible in terms of the carers not meeting the needs of the children or meeting fostering expectations…’

82.	With the agreement of all parties, the hearing before me on 11th March was conducted on submissions only. One of the statements before the court at that hearing was from PGO and FEO’s then Link Worker, Ms G, dated 4th March 2011. In it, Ms G says that
‘On reviewing the files of PGO and FEO, Local Authority records indicate concerns were previously raised by professionals in March 2007 when a sibling group of two boys were placed with the carers’.

The boys concerned were the S children. Ms G went on to outline the concerns of the children’s social worker. She makes no reference to the fact that in the Foster Home Reviews for 2006 and 2009 the local authority’s fostering services team record that these concerns had been investigated and judged to be unfounded. 
83.	Since 13th September 2009 the children’s social worker has been Mrs C. At the hearing on 11th March the local authority relied upon a statement by Mrs C dated 3rd March 2011 in which she said that
‘50. There have been historical concerns about FEO’s ability to work with adoptive parents, following the placement of two boys with adopters prior to CB and LB being placed with her. The introduction period with the adopters was interspersed with complaints from FEO that were not significant to the adoption.’

84.	In her oral evidence at this hearing Mrs C conceded that at the time she wrote that statement she had not read PGO and FEO’s 2009 Foster Home Review but had relied upon statements made to her by other members of her team. Had she read the 2009 review she would have seen that it presented an entirely different account of PGO and FEO’s role in assisting to move on those two boys into their adoptive placement. The 2009 review states that
‘FEO and PGO provided a placement for X and Y for over 2½ years. The children came with lots of issues and no boundaries and their foster carers were able to provide them with a stable and happy placement. The couple were both very attached as was (sic) their own children to X and Y. Despite their attachments to the boys they were able to facilitate their move to their adoptive placement in a professional manner. Similarly FEO and PGO were able to positively assist Z to move to a placement with family and friends.’

In her oral evidence Mrs C accepted that, so far as concerns this particular issue, her written statement was inaccurate and misleading. 
85.	That is not the only significant inaccuracy in Mrs C’s statement. She also says that on 2nd November 2010 she had a conversation with the children’s health visitor who
‘informed me that she had neither seen nor heard from FEO in several months. She was very concerned that, given the concerns about LB’s speech and behaviour and about CB having what appeared to be a persistent urine infection; FEO had not contacted her to discuss the concerns.’

During the course of this hearing the local authority has belatedly filed statements by the health visitor setting out her contact with the children. Her evidence does not support the assertion made by Mrs C.
Concerns about PGO’s aggression
86.	The local authority expresses concern about what it perceives to be PGO’s aggression. One particular incident is relied upon. This occurred on 29th January 2007. PGO and FEO were visited at home by a duty social worker, Ms H, and by their then Link Worker, Ms K. PGO and FEO took exception to a comment made by Ms H. The meeting became somewhat acrimonious. Ms H alleged that when she left the house PGO had pinned her up against her car. PGO denies this. PGO and FEO made a complaint about Ms H’s behaviour. 
87.	On 5th February 2007 Ms T, a Team Leader, wrote to PGO and FEO saying that she apologised ‘if Ms H’s behaviour has been in any way unprofessional’ and confirmed that Ms H said that PGO ‘did not use any inappropriate language’. The letter does not mention Ms H’s allegation that PGO had pinned her up against her car. Indeed, at no time has the local authority complained to PGO about such an incident. No complaint was made to the police.
88.	Although both Mrs Lilley and the guardian say that they can understand why others may perceive PGO as being aggressive, neither has experienced him as aggressive during their own meetings with him and neither of them felt threatened or intimidated by his manner. Their experience of him is that he does not like being challenged. 
89.	It is also appropriate to note some of the observations made in the 2009 annual review. Under the heading ‘Working as part of a team’, the review notes that
‘The carers are able to work as part of a team and they have certainly worked well with FPS in the last year. I feel that we have established a good working relationship’

	Under the heading ‘Communication skills’ the review notes that
		‘Both carers communicate well with professionals, parents and children…’
	And under the heading ‘Working with other professionals and agencies the review	states that
‘The carers have established good professional relationships with colleagues, professionals and other agencies.’

90.	I am not satisfied that there is any evidence to justify a finding that PGO has been aggressive towards professionals, though I have no doubt that on matters of concern he will have left professionals in no doubt of his views.
PGO and FEO’s care of LB and CB
91.	Some concerns have been expressed about the level of stimulation provided for LB and CB, and in particular that they have too often been placed in front of a television as a means of occupying them. There are concerns about LB’s speech delay (he has now been referred to a speech therapist) and a concern expressed by PGO that LB may be autistic (a concern that has as yet not been investigated). There are concerns that LB can at times be aggressive, particularly towards CB. There is a concern that FEO has not followed advice that it would be in the children’s interest for them to go to ‘stay and play’ sessions, though it is accepted that they are now attending. 
92.	The guardian does not share the local authority’s concerns about lack of stimulation within the foster home. She makes the point that if the local authority had wanted a higher level of stimulation for LB then it should have been more robust in ensuring that this happened earlier in the placement. She does not regard this as an issue of any real significance. Indeed, it is the case that notwithstanding the concerns I have outlined both Mrs Lilley and the guardian agree that LB and CB are receiving good quality care from PGO and FEO.
PGO and FEO’s interest in adopting LB and CB
93.	Mrs Lilley notes that there is ‘scant information on the fostering files’ concerning PGO and FEO’s expression of interest in adopting LB and CB. She notes that the Fostering Service ‘did not actively offer support to PGO and FEO following the decision in January 2010 that LB and CB’s care plan should be that of adoption’. She also observes that their Link Worker left not long after that decision had been taken and that their current Link Worker did not meet them until October 2010. For a period of more than six months, and at a critical time in the process of planning for LB and CB’s future, PGO and FEO were left unsupported by the local authority. 
94.	It is clear from the local authority’s records that once the local authority informed PGO and FEO of the long-term care plan for LB and CB they expressed an interest in adopting them. I am satisfied that they were discouraged by the local authority. One of the reasons for that appears to have been the relative proximity of PGO and FEO’s home to the birth parents’ home and the belief (a mistaken belief as I find) that PGO and FEO had had several chance encounters with the birth parents in Coventry city centre. PGO and FEO believed that this issue of geography was spurious and that the local authority simply did not wish to consider them as adopters for LB and CB. In my judgment their belief was not only understandable but also correct. I am satisfied that faced with discouragement from the local authority PGO and FEO did not push the adoption issue. They did not give a consistent message to the local authority. 
95.	The local authority’s progress in identifying suitable adopters for these children was very slow. It was not until December 2010 that the local authority identified Mr and Mrs A as a suitable match. PGO and FEO were informed. They learned from the children’s social worker, Mrs C, that Mr and Mrs A lived no further away from the birth parents than they did. Given their belief that geography had played a significant part in the local authority’s decision not to support their own interest in adopting these children, they were understandably annoyed. At that point, if not sooner, they could and should have taken legal advice. They didn’t. 
96.	After the match had been approved by the local authority’s Adoption Panel, PGO and FEO were informed of the arrangements for introduction of the children to Mr and Mrs A. At that point at the very latest, PGO and FEO should have been open with the local authority about their intentions. They weren’t. They allowed the introductions to begin without informing the local authority that they proposed to seek legal advice about pursuing their own wish to adopt these children. I accept that it came as a great shock to the children’s social worker and to Mr and Mrs A when they were informed of the late applications issued by PGO and FEO. I do not doubt the distress that was caused to Mr and Mrs A. 
97.	The continuing relevance of that history is in PGO and FEO’s appreciation of its possible impact on LB and CB. In her reports Mrs Lilley makes the point that
‘Setting aside the disputed accounts of the decision making around the adoption plan for the children, what PGO and FEO did in stopping the children moving from their care at the last minute was a drastic step and one which has no doubt left it’s mark on the children in ways that we are not yet aware. I have tried to talk to FEO and PGO about what impact this may have had on their subsequent behaviour but am unsure how much they were willing to hear.’

She said that she is not convinced that they genuinely took the children’s needs into account when they made their application to the court. The guardian shares those views.  
98.	Having heard PGO and FEO give evidence I, too, am not convinced that they fully understand the possible impact on LB and CB of having extensive introductions to what they will have been told was to be their ‘for ever’ family only then to find their embryonic relationship with Mr and Mrs A suddenly aborted. I temper that criticism by acknowledging that although they did not consider the possible emotional consequences for the children, their decision to seek to adopt was borne out of a genuine and sincere commitment to these children. When taken to the wire, their love and concern for these children prompted them to act as they did. 
The guardian’s assessment
99.	The guardian is not without sympathy for PGO and FEO. She acknowledges that there is a warm and loving relationship between PGO and FEO and the children. In her opinion some of the local authority’s concerns do not present a fair picture of the whole of PGO and FEO’s parenting. She acknowledges that there are ‘a lot of positives’. She says that
‘PGO and FEO maintain that concerns about them as foster carers only became pertinent after their Adoption application in March 2011. I have some sympathy with this viewpoint. The couple have been foster carers for seven years and they have cared for a lot of children. There have been concerns expressed about them in the past but the Local Authority has not acted upon any concerns. The annual fostering review that I have read certainly does not give the impression that there were significant concerns about PGO and FEO. It has to be highlighted that there are also very positive comments about them on file.’

100.	However, notwithstanding her sympathy towards PGO and FEO, the guardian agrees with Mrs Lilley that the risks outweigh the positives. The risks which weigh most heavily with her are the unresolved stresses within the family relating to their finances, the ongoing dispute with HJ, the concern that they have difficulty in working cooperatively with other professionals in the interests of the children and the allegation that PGO has been aggressive towards a social worker. 
101.	I have already noted that in her written report the guardian makes the point that PGO lacks empathy for his older children. She underlined this point in her oral evidence. She said that there is what she called an ‘emotional gap’ or ‘incongruence’ between his love and support for LB and CB and his lack of understanding of the way his older children are feeling. He doesn’t understand what it feels like to walk in their shoes. From their perspective ‘to know that he is taking on two more children for life, that is a killer’. 
Transferring the children’s attachments
102.	There is clear evidence that LB and CB are securely attached to PGO and FEO. Both Mrs Lilley and the guardian accept that to be the case. Both advise that it is possible for that attachment to be transferred to new carers.
103.	Mrs Lilley’s opinion on this issue is based on her experience of seeing other children successfully transfer their attachment from foster carers to adoptive carers. However, she also makes the point that her instructions were to assess the suitability of PGO and FEO as adopters and not to undertake an assessment of LB and CB. She accepted that she cannot predict what the impact will be on these children of separating them from carers to whom they are attached and moving them into a stranger-adoption placement. She accepts that there is likely to be a reaction. There may be some initial regression in their behaviour. If they were unable to form attachments to their new carers then that could have significant consequences for them in the longer term.
104.	In terms of the prospects of a successful transfer of the attachments of these children much will depend upon the appropriateness of the adoption support plan. At my request Mrs Lilley considered the adoption support plans prepared at the time of the proposed placement with Mr and Mrs A. In her opinion the plan for LB, in particular, was less specific and detailed than she considered appropriate.
105.	It appeared to me that the guardian was rather less confident than Mrs Lilley about the prospects for both of these children being able successfully to transfer their attachments from PGO and FEO to stranger-adopters. She is confident that CB will be able to achieve this. She is less confident about LB given his speech delay and his behaviour problems.
The law
106.	The approach the court should take in determining this application is that set out in s.1 Adoption and Children Act 2002. The court’s paramount consideration is the welfare of these children throughout their lives (s.1(2)). The court is required at all times to bear in mind that, in general, any delay in coming to a decision is likely to prejudice the children’s welfare (s.1(3)). In arriving at its decision the court must have regard to each of the factors set out in the welfare checklist s.1(4).
107.	The question arises as to whether Article 8 of the European Convention on Human Rights and Fundamental Freedoms can be engaged in the context of a fostering relationship and, if so, whether it is engaged in this case. 
108.	In answering those questions I have regard, firstly, to the decision of Munby J (as he then was) in Singh v Entry Clearance Officer [2005] 1 FLR 308. Munby J said that
[20] The core principle was, I believe, stated by the European Court of Human Rights in Lebbink v The Netherlands [2004] 2 FLR 463, at [36]: 
‘The existence or non-existence of “family life” for the purposes of Art 8 is essentially a question of fact depending upon the real existence in practice of close personal ties.’ 

109.	It is also appropriate to refer to the decision of Baker J in G v E [2010] EWHC 621 (Fam). These proceedings in the Court of Protection concerned E, a 19 year old man who had been living with local authority foster carers for more than 10 years having originally been placed with them when accommodated by the local authority under s.20 Children Act 1989. Upon reaching adulthood he had continued to reside in the same placement until he was removed by the local authority. One of the issues the court had to consider was whether, in removing E from his long term carers, the local authority had infringed his Art 8 rights. The court considered the question of whether relationships between children and foster carers fall within the definition of ‘family life’ for the purpose of Art 8. Baker J said that
‘83. Article 8 guarantees, inter alia, “respect for” private life, family life, and one's home. Whether or not "family life" exists depends upon the facts and the real existence of close personal ties: K and T v Finland [2001] 2 FLR 707. In the words of Munby J. in Sheffield City Council v S [2002] EWHC 2278, “in our multi-cultural and pluralistic society the family takes many forms…The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what until comparatively recently would have been recognised as the typical nuclear family. But – and this is the point - the family, whatever form it takes, is the bedrock of our society and the foundation of our way of life.” It is well established that relationships between children and foster parents or carers fall within the definition of "family" within the meaning of Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, and such a relationship does not come to an end when a child reaches the age of majority: Sheffield City Council v S (supra).

110.	The reality is that PGO and FEO are the only ‘parents’ these children have ever known. LB has been part of their family since he was two months old. CB has been part of their family since she was twelve hours old. They are securely attached to and loved by PGO and FEO. PGO and FEO are, in truth, these children’s ‘psychological parents’ within the meaning of that expression as explained by Baroness Hale in Re G (children) [2006] 2 FLR 629:
[35]   …social and psychological parenthood[is] the relationship which develops through the child demanding and the parent providing for the child’s needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase ‘psychological parent’ gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (Free Press, 1973), who defined it thus:
‘A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child’s psychological needs for a parent, as well as the child’s physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.’
111.	I am satisfied that Art 8 is engaged. The court must therefore seek to arrive at an outcome that is both proportionate and in the best interests of these children.
Discussion
112.	PGO and FEO have been approved local authority foster carers since 2004. In the course of making their application for approval they were open and honest with the local authority concerning their respective histories. In particular, PGO disclosed that he had a criminal record, that he had received a custodial sentence, that he had changed his name, that he had previously had a long-term relationship with HJ and that he had three children from that relationship. Both Mrs Lilley and the guardian were concerned about the inadequacy of the investigation of these issues by the assessing social worker and by the local authority’s Fostering Panel. I am satisfied that the local authority’s assessment of PGO and FEO’s application to become foster carers was not wholly compliant with either the regulations or the National Minimum Standards that were current at that time and was therefore inadequate. I find that had the local authority undertaken a thorough assessment of PGO and FEO it is a real possibility that they would not have been approved as foster carers.
113.	The local authority’s approach to the complaint made by HJ in 2007 was also inadequate. The failure to meet with HJ to discuss her complaints was discourteous and bad practice. In Mrs Lilley’s opinion not only should the local authority have met with HJ but, having done so, should as a matter of good practice have referred the matter to its Fostering Panel. I agree. Had the matter been referred to the Fostering Panel then that would have given the Panel the opportunity not only to consider HJ’s complaint but also to consider issues that had been glossed over at the time of the original fostering application: issues relating to PGO’s criminal record, to his lack of engagement with his older three children and to the fact that he has made little contribution towards their financial support. Had the Fostering Panel considered those matters I find that there would have been a real possibility that the Panel would have terminated PGO and FEO’s approval as foster carers.
114.	Had the local authority supported PGO and FEO’s wish to adopt LB and CB their application would ultimately have been considered by the local authority’s Adoption Panel. The task of the Adoption Panel would have been to consider whether PGO and FEO were suitable to adopt a child and not whether they were suitable to adopt LB and CB (Adoption Agencies Regulations 2005 reg. 26(1)). I am satisfied on the evidence before me, and in particular the evidence of Mrs Lilley, that it is unlikely that they would have been approved. 
115.	It does not necessarily follow from the above that PGO and FEO’s application to adopt these two children is bound to fail. Although I have found that there is a real possibility that PGO and FEO would not have been approved as foster carers if the local authority had undertaken the assessment process with due rigour, the fact remains that they were approved as foster carers. Although I have found that there is a real possibility that PGO and FEO would have had their appointment as foster carers terminated had the local authority handled HJ’s complaint competently, the fact remains that there was no referral back to the Fostering Panel and their appointment as foster carers has continued to be extended year on year. Over the years they have had more than twenty children placed with them. The annual Foster Home Reviews that have been undertaken show that they have discharged their responsibilities well, including, most recently, their responsibilities towards LB and CB. 
116.	I am satisfied that PGO and FEO have met these children’s needs thus far. The key question for the court is whether it can be satisfied that they will be able to continue to meet all of the children’s needs in the future. In addressing that issue it is appropriate to begin by undertaking a welfare checklist analysis. The following parts of the welfare checklist appear to me to be of particular relevance in this case.
117.	Section 1(4)(a) requires the court to take into account the children’s ascertainable wishes and feelings (considered in the light of their age and understanding). In this case neither of these children is capable of expressing a view. However, there is clear evidence that they are well-settled in the care of PGO and FEO and that they are securely attached. In my judgment it is reasonable to suppose that if they were old enough to express a view it is likely that they would say that they wished to stay where they are with carers who already know them and love them.
118.	Section 1(4)(b) requires the court to have regard to the children’s particular needs. CB’s needs are no different to those of any other child of her age. She needs to be loved, cherished and cared for. LB’s needs are greater. He has speech delay for which he has been referred to a speech therapist. He has shown some signs of behaviour problems. He can be quite aggressive, particularly towards CB. PGO and FEO have queried whether he may be on the autistic spectrum. In her written report the guardian said that ‘if questions are being raised about LB’s development other than his speech delay then this should be assessed further as it could be of significant relevance to any future care planning.’
119.	Section 1(4)(d) requires the court to have regard to the children’s ages, sex, background and any of the children’s characteristics which the court considers relevant. In this case the children’s background could, in the longer term, prove to be relevant. Within the original care proceedings both birth parents underwent a psychological assessment. Both have psychological difficulties. Both have significant personal histories of disrupted emotional attachment, emotional and physical abuse, social and interpersonal functioning difficulties and long-standing involvement with Social Services. Neither of them is functionally literate. Both require considerable support. All of these issues may have a relevance to LB and CB’s long term development and behaviour.
120.	The evidence about the care LB and CB are receiving is positive. They are very much part of the family, loved and cared for by N and C as well as by PGO and FEO. In the short term there is no concern that this is likely to change. But for LB and CB adoption is not a short-term arrangement. As section 1(2) Adoption and Children Act 2002 makes clear, the paramount consideration of the court must be the welfare of these children throughout their lives. It is in the context of the longer term that concerns have been expressed. 
121.	 I am untroubled by some of Mrs Lilley’s concerns. Although I acknowledge the seriousness of PGO’s criminal convictions they are now more than twenty years old. There is no evidence of criminality since 1989. Whilst I also acknowledge the seriousness of the domestic abuse between PGO and HJ, that, too, took place more than twenty years ago. There is no evidence that there has been domestic abuse within PGO and FEO’s household. For the reasons set out earlier, I do not accept the local authority’s concerns about the ability of PGO and FEO to work co-operatively with professionals. I do not consider any of these issues to have significant implications for PGO and FEO’s ability to continue to meet the needs of these children in the longer term.
122.	PGO’s relationship with his older three children is a greater concern. His failure to take adequate and timely steps to try to maintain a relationship with them is regrettable. His conspicuous failure to provide financial support for them is compounded by what appears to have been a sustained and determined effort to avoid providing financial support for them. This is deeply unattractive. Although in giving evidence PGO was at times tearful when talking about his older three children I agree with the guardian’s assessment that he is lacking in empathy. 
123.	If an Adoption Panel were considering PGO and FEO’s suitability to adopt a child pursuant to the Adoption Agencies Regulations 2005 then I accept that this factor alone would likely be sufficient to justify the Panel in rejecting their application. But I am not considering their application to adopt a child I am considering their application to adopt these children, children whom they have loved and cared for throughout almost the whole of their lives. If LB and CB remain in their care then in future years they will have to explain to them, in the same way that they have had to explain to N and C, why they do not have a meaningful relationship with R, S and T. PGO and FEO may find that difficult. They will probably find it painful. So far as concerns the lack of financial support, they ought to find it shaming. I accept that this is an issue to be weighed in the balance in the context of evaluating their ability to provide long-term care for LB and CB.
124.	However, in my judgment the greatest concern relates to PGO and FEO’s financial security. PGO’s business appears to make very little profit. The family is dependent upon state benefits and the fostering allowance received for LB and CB. The adoption allowance would be half the fostering allowance currently in payment and would be time limited for two years. There is a risk that PGO may have to pay substantial arrears of child support, though I acknowledge the untested evidence of Mr and Mrs X that they would make an interest-free loan to pay off that debt should it arise. As both Mrs Lilley and the guardian point out, the uncertainty surrounding their medium to long-term financial security creates a constant pressure which this family must live with day by day. This is a significant issue to be weighed in the balance in the context of evaluating PGO and FEO’s ability to provide secure, stable long-term care for LB and CB.
125.	Although a reading of Mrs Lilley’s written reports suggests that the concerns clearly outweigh the positives, the impression I gained from her oral evidence was that the decision is perhaps more marginal. It is certainly more marginal for the guardian. Both in her written report and in her oral evidence she described the decision as ‘finely balanced’. That same expression was adopted by Miss Frances Judd QC, for the local authority, in her final submissions. 
126.	I agree. The decision for the court is indeed a finely balanced and extremely difficult decision. Although the court has already concluded that adoption is in the best interests of these children, the fact remains that whether LB and CB are adopted by PGO and FEO or by strangers, adoption is not a risk-free process. If they move into a stranger-adoption placement it will be in the hope that the love, care, security and attachment which they have with their present carers will be replicated in their new placement. However, there is always a risk that such a placement may not be successful. The guardian accepted that for LB in particular, the risk that an adoptive placement may disrupt or that the move may exacerbate his behavioural difficulties is a risk that is real in the sense that it is a risk that cannot safely be ignored. The risks inherent in moving them into a stranger-adoption placement must be balanced against the identified medium to long-term risks should they remain in the care of PGO and FEO.
127.	Earlier in this judgment I concluded that PGO and FEO, LB and CB are entitled to the rights accorded by Art 8 European Convention on Human Rights and Fundamental Freedoms. Stranger-adoption would mean removing LB and CB from the only home they have ever known; it would mean interfering with the family life they enjoy with PGO and FEO. In my judgment that would only be a proportionate step to take, a step taken in their best welfare interests, if the court were satisfied, on balance, that the risks in maintaining them in their present home outweigh the risks of moving them into a stranger-adoption placement. The decision for the court is one of profound importance for these two children. It is for that reason I have taken time to reflect on the evidence before arriving at a final decision. With considerable hesitation, I have come to the conclusion that I am satisfied that the risks in maintaining LB and CB with PGO and FEO outweigh the potential risks of moving them into a stranger-adoption placement. I therefore dismiss the applications.