Royal Borough of Windsor & Maidenhead v G, P, W and M [2025] EWFC 93 B

In the recent case of Royal Borough of Windsor & Maidenhead v G, P, W and M [2025] EWFC 93 B, Josephine Ann McElroy represented a father in complex care proceedings which centred on the question of whether children should be cared for together or whether they could be separated and the implications of doing so.

The background to this case was particularly sad. The care proceedings were instigated in respect of three young children, K, L and M. K and L are young boys, aged 6 and 5 at the time of the proceedings, and M is their sister aged 3. All are of Polish heritage but habitually resident in the UK.

In February 2024, the children were removed from their parents’ care due to concerns about whether they could keep the children safe and care for them properly. The mother had had an older child removed from her care previously. There was a long history of violence within the home; threats of suicide by the Father; and the parents failing to properly care for the children (for example by failing to take a child with toothache to the dentist for 2 weeks despite the child being in excruciating pain). In March 2024, approximately 6 weeks after the children were removed, their mother committed suicide.

At the date of removal in February 2024, the children were being cared for by their mother and had not seen their father for approximately a year (indeed, he had not even been named on M’s birth certificate as their mother although there was no dispute over their paternity). The children were placed into foster care, firstly with a single carer who had her own children who ultimately could not cope with their needs, and then with a mother and her adult daughter who were described as being of Asian heritage. The mother did not speak English although the daughter did. The Local Authority were unable to clarify what language was spoken within the home. Contact with the father resumed under the interim care order, until October 2024 when he was imprisoned awaiting trial on domestic abuse charges said to have been committed in the course of sexual abuse.

The father applied to adjourn the hearing of the care proceedings until after the conclusion of his criminal trial, but this was refused. His legal team then became professionally embarrassed and withdrew, leaving the father without representation. The Local Authority were prepared to agree a short adjournment in order to allow him to obtain alternative representation, but the Guardian opposed it pointing out that the proceedings had already taken far longer than the 26 weeks in which they should have been concluded.

The final hearing of the care proceedings was listed for February 2025. The Father failed to make contact with his new solicitors from prison, so was given 2 hours on the first day of the hearing in order to give instructions to Counsel. Instead, he spent those hours complaining, and saying that he did not have access to the bundle (despite the court finding that he did), and asking for a further adjournment. This was denied. It was in this context that Ms McElroy was required to represent the Father at the hearing – a hearing which would have been challenging and emotional hearing at the best of times, and more so without any meaningful co-operation from her client. The judge recognised her skill and care, saying “While I am grateful to all counsel in these sad, complex and emotionally charged proceedings, I am particularly grateful to Miss McElroy who was instructed very late in the day and who worked tirelessly to get up to speed and obtain instructions from the Father in difficult circumstances – via prison video link and with the able assistance of a Polish interpreter.”

At the hearing in February 2025, the Local Authority was applying for care orders in respect of all three children – K and L in long term, therapeutic foster care, and M being removed from them and placed for adoption. The children’s guardian supported the local authority, but the father did not. He accepted that threshold was met, but wanted the opportunity to care for the children himself in the future, once he was out of prison, had addressed his anger management and alcohol issues, and with the support of his mother.

The judge considered a huge amount of evidence in respect of the children. By the date of the hearing, all had significant needs due to emotional and behavioural dysregulation.

The judge firstly turned to the question of M, for whom a placement order was proposed, summarising the law as follows:

"17. A placement order is permanent. Its effects on all parties are profound and lifelong. The local authority’s applications re therefore to be assessed under the framework of Article 8 ECHR: the rights of M and her Father to respect for their family and private life are only to be interfered with to the extent that is necessary and proportionate. The court must look to make the order of least interference, as is often stated, an order for placement away from the family when nothing else will do. Where M’s rights conflict with those of her Father, M’s rights prevail. Her welfare is paramount and should it require placement outside the family, the consent of the Father will be overridden. Before I can make the orders pursuant to s31 Children Act 1989 and s21 Adoption and Children Act 2002 that the applicant local authority seeks in respect of M, the applicant must satisfy me on the balance of probabilities that
(i) M is suffering or is likely to suffer significant harm attributable to the care given, or likely to be given if the orders were not made, that care being unreasonable;
(ii) there is solid evidence that M’s physical or emotional safety requires the making of the orders;
(iii) that upon consideration of the realistic options, and having regard to M’s welfare for the rest of her life applying the checklist at section 1(4) of the Adoption and Children Act 2002, the orders sought are both necessary and a proportionate interference with M’s Article 8 rights and those of her Father.”

The paramount consideration is M’s welfare. This must include assessment of the importance of any sibling attachment when considering the child’s welfare in the short, medium and long term. The judge’s concern was that even if M were not to be placed for adoption, placement with her siblings would probably not be achievable in any event given the high level of harm and therefore the high level of need. The relevant case law is set out in Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948 in which Pauffley J concluded that long term foster care was not as satisfactory in terms of stability for a child as adoption: “…a long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted”.

The judge found that threshold had been crossed in respect of M, and so public law orders could be made should her welfare require it.

The judge had to address whether M’s lifelong welfare demanded her permanent removal from her Father’s care and authorisation to the local authority to place her for adoption. There were no suitable kinship carers, so the only options were long term foster care separately or together with her brothers, or adoption.

M was only 3 so could not express her own opinions on where to be cared for, but was felt to be at an age where she needs to form permanent secure attachments in order not to further compromise her lifelong mental and emotional wellbeing. The judge felt that there was no realistic likelihood of the Father being able to access and successfully complete the recommended intensive programmes within a reasonable timescale, and even if he could, the chances of him raising his parenting abilities to provide good enough care for M are minimal.
The overriding concern was M’s lifelong welfare, and the evidence suggested that the current foster placement was not meeting her needs and there was no foster placement which could properly meet her needs were she to remain with her siblings. Her medium and long term needs could only be met by permanence given her history. Her relationship with her siblings was her most significant familial one, and it would be in her interests to maintain some direct contact with her brothers if possible but the most important priority would be for her to form a strong attachment to a permanent primary carer.

In terms of proportionality, the Father argued that it would be disproportionate to make a placement order until such time as he had carried out the therapeutic work which he needed to do in order to raise his parenting, and that a foster placement for all three children could be achieved. The judge disagreed with these arguments stating that the chances of the Father being able to remain abstinent from alcohol, manage his anger, begin and maintain a prosocial lifestyle within months or even years were “vanishingly small”. He was also concerned that the window of opportunity for M to form permanent attachments was running out, and that finding a placement which was suitable for M and her siblings was slim. The advantages of a placement order were many and obvious, including in terms of the quality of prospective adopters who would have been subjected to rigorous vetting over many months. The judge was clear that they would be able to provide extremely good parenting, to protect M from harm, and to provide her “with the priceless gift of a happy, secure and stable childhood from which she will derive lifelong advantages”. Thus the judge found that permanent placement of M away from her birth family was proportionate.

“In all the circumstances I find that M’s lifelong welfare requires my approval of the local authority care plan and the making of a placement order: nothing else will do.”

The question around K and L was complicated because of the question of whether the children should be kept together or separated. All parties agreed that threshold was met such that public law orders could be made, and that long term foster care under final care orders was the only realistic option. K and L had a high level of need due to their significant emotional and behavioural dysregulation, and were likely to need assessment for autism in the future but this was recommended to take place after the children had been in a stable placement for at least 6 months and had received reparative parenting. It was unlikely that they had received that in the time they had spent in foster care with a carer who did not speak English, especially as they were used to speaking in Polish at home. Several experts had met and reported on the children’s needs, and had commented on the fact that both had a very high level of need and therefore may need to be placed separately.

The Guardian’s Final Analysis, filed at the beginning of January 2025, supported the local authority care plans for each child and her Counsel’s written submissions confirmed that: “The separation of these children who have lost so much in their lives is not advocated lightly or without searching consideration of what they each need….Placing the children separately would allow for their needs to be met more easily and predictably and would lessen the significant risk of placement breakdown…The Guardian’s view is that living separately is likely to be healthier in the long run for each child’s relationship with their siblings.”

The judge agreed that, notwithstanding the obvious disadvantages of long term foster care for very young children which had been discussed in relation to M’s care, there were only two realistic options for the boys’ long term futures – long term foster care together or separately.

The boys had a strong sibling relationship, and as far as could be ascertained given their age and maturity, would want to stay together permanently in a safe, stable and loving environment. In terms of physical, emotional and educational needs, both children had delays in speech and language and had exhibited behavioural and emotional dysregulation. However, much of the work which had been recommended by experts had not been completed. For example, the local authority had not organised EHCPs for the children, and they had not found suitable foster carers so that the children had not benefitted from six months of reparative parenting (albeit that the judge found that the placement of the children had been very challenging for all parties). Despite this, and their other adverse childhood experiences to date, the children seemed to have made some progress since being removed into interim care. The risk was that separating the children from each other would cause further significant trauma, particularly as they were about to encounter the additional trauma of being separated from M. 

Communication difficulties meant that it was difficult to assess the strength of the sibling bond, and it was probably even stronger that it appeared – particularly as much of the evidence regarding this point came from the foster carers who had no experience in neurodiversity and seemed in some regards to have paid insufficient attention to the children. The children had suffered significant harm, and are highly vulnerable who need high security and safety and would probably need high levels of therapeutic and educational support for the remainder of their minority.

As with M, the Father was not in a position to care for K and L, so alternative care needed to be found. However, with M the choice was between foster care and adoption, whereas with K and L it was between separate foster care or foster care together. Neither K or L were considered to be realistic candidates for adoption. Notwithstanding this, the judge felt that in the context of the shared history of trauma of the children, he would “only approve the separation of these siblings if I were satisfied that nothing else would do.” His conclusion was that “While I am prepared to make final care orders in respect of the boys, I am not prepared to do so based on care plans that sanction their separation.”

The decision, therefore, was adoption for M and long term foster care together for K and L. This was a difficult and very sad case, with an unwilling client. Miss McElroy, a gifted advocate who is very good at building relationships with clients, was able to represent the Father’s views to the judge such that they were taken into account and ensured that he experienced a fair hearing and decision.

The outcome here demonstrates the very difficult decisions which judges in the Family Court have to make in respect of children, but that each child will be considered individually to make the decision which is best for them. The judge clearly recognised the difficulties of placing K and L together, and the challenges which this would cause in terms of finding a suitable carer, but felt that this should be explored further before separation could be countenanced.