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Who you gonna call? Myth-busters

 

 
There’s been quite a lot of publicity about Martin Narey’s Myth-Busting document on adoption, following the recent adoption statistics taking a hit – something that any one who had been reading the case law in the last 18 months had seen coming a country mile away.

Apparently that’s all just a misunderstanding by dopey Local Authority social workers and lawyers, and it is all our fault.   The Court of Appeal overturning case after case last summer had nothing to do with it.
[Tim Loughton, the former Children’s Minister instead says that the problems are due to Judges sulking about legal aid cuts and slowing things down deliberately. At least, according to the Telegraph he said that. http://www.telegraph.co.uk/news/politics/11224155/Judges-resentment-toward-Government-adding-to-adoption-slump-ex-minister-warns.html ]

 

http://www.adcs.org.uk/download/resources/adoption/ALB%20-%20Impact%20of%20Court%20Judgments%20on%20Adoption%20-%20November%202014.pdf

The national Adoption Leadership Board, Family Justice Board, and the Department for Education have heard regularly that these changes are a response to a number of high profile court judgments on care and adoption order cases, notably Re B and Re B-S. Some of this feedback suggests a degree of misinterpretation of these judgments. This appears to have resulted in inaccurate assumptions being made about the judgments which, in reality, do not alter the legal basis for the making of care and placement orders.

 

The document discusses the two recent cases from October, where the Court of Appeal distanced themselves from a literal interpretation of “nothing else will do” – explaining in Ben Goldacre’s phrase “I think you’ll find its a little more complicated than that”

If the Myth-Busting document were confining itself to commentary that the deluge of appeals last summer were something of a blip and we have settled down from a strictly literal interpretation of Baroness Hale’s “nothing else will do” phrase to something rather more nuanced, then I’d be fine with it.  Or even “rumours of the death of adoption have been greatly exagerrated”

Though frankly, no matter how senior the senior QC, I’d prefer to hear the Court of Appeal say “just ignore BS, it changes nothing” than to take it from a document with no legal status or weight.

 

I don’t care for the implication that Re B and Re B-S weren’t a shift in emphasis and culture – that’s to completely ignore just about everything that Hale and Neuberger said about the nature of adoption in Re B, to ignore the ECHR in Y v UK when they said this :-

 

“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

 

or that the Court of Appeal meant nothing of substance whatsoever when they said this

 

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

If you think that has had no alteration on the legal basis for the making of Placement Orders, then I’m afraid we’ll have to disagree.  Does it change the tests in the Act? No, absolutely not. But as the Supreme Court made plain in Re B, proportionality is now a key ingredient in assessing such decisions.  And the interpretation of the word ‘requires’ in the Adoption and Children Act 2002  is now inextricably bound up with proportionality and article 8.  And the move away from linear judgments (whereby adoption ended up looking like the best option simply because all the others had been ruled out before the Court thought about adoption at all) from Re G is unquestionably an alteration to the legal basis for the making of Placement Orders.

If instead you mean – the combination of all that law should not mean that children who ought to have been adopted in 2012 shouldn’t be adopted now – the law is about making professionals and Judges work much harder on clarity of thought and reasoning, I wouldn’t entirely disagree  (I think that’s Baker J’s take, and I rate Baker J very highly).  I think there’s a very important debate to be had about whether Hale and the Court of Appeal wanted adoption to be harder to get for children, or harder to get for PROFESSIONALS.

But whether the “bar” has been raised or not, the legal basis has certainly changed – a judgment that would have passed muster in 2012 would not today.

 

And I completely agree with the document on Myth 4

MYTH 4 – because it is a “last resort” planning for adoption must wait
23. Local authorities should plan at the earliest possible stage for the possibility of adoption where it seems possible that other options – such as reunification with family, or care by family or friends – might not prove a realistic course of action

That does not mean pre-empting any decision. Nor does it remove the need to provide expert, high quality, evidence-based assessments of all realistic options to the court – which is essential in every case. But planning ahead is necessary to avoid delay and allows for a more timely process in achieving the right outcome for the child.
Absolutely right. I fully agree.  One out of five Myths successfully Busted. The others, rather less so.

 

 

I had a long long diatribe, but I’m going to confine myself just to Myth Five.

Let’s just take Myth number 5 in detail.

MYTH 5 – the 26 week rule applies to placement orders
24. Under the law as it came into force on 22 April 2014, any application for a care order or a supervision order must be completed within 26 weeks (unless the court is satisfied that delay is necessary, in which case a court may grant an extension). Placement order applications are not subject to the 26 week time limit. However, if the case is one in which the care plan is for adoption, if it is possible to complete the placement order application within the 26 week time limit, then that is likely to be in the best interests of the child, as we know that delay damages children.
If one takes each individual word, it seems true and accurate. But it doesn’t actually represent reality. The suggestion here is that Placement Order applications are free of the 26 week shackles, though it is good to get it done in that time if possible. The implication is that you can do Placement Orders in a timescale that is the child’s timescale, free of 26 week confinement.

That’s just not actually true in a meaningful way.
Yes, under the law as it came into force on 22nd April 2014 the 26 week timetable applies to care order applications, not placement order applications.

But the Act and the law are not the same things. They aren’t identical.

You can’t seek a Care Order with a plan of adoption unless you have got approval from the Agency Decision-Maker. And if you’ve got approval from the Agency Decision-Maker, you are in a position to lodge your placement order.

So if the Local Authority HAVE to hit a 26 week timetable (really 17 weeks for them, because they have to provide their evidence BEFORE the end of the case to let others respond to it) for their Care Order, then in any case where there’s a PLAN for adoption, then the same timetable applies.

 

Don’t take my word for it – let’s look at what the Court of Appeal said in a judgment that is utterly missing from the Myth-Busting document

Surrey County Council v S 2014

There was no reason why the local authority could not have obtained the agency decision maker’s decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed ‘permanence report’ which describes the realistic placement options for the child including extended family and friends. The report describes the local authority’s assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an ‘annex A’ report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.

•In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker’s decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children’s guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker’s decision, they could not present a full analysis of the factors in section1(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/601.html

[This case sticks out in my mind because it was Ryder LJ giving the lead judgment and I wholly agreed with it. That gave it a veneer of uniqueness that makes it easy to recall]

And of course, we are seeing right now with Re D that having a stand-alone Placement Order application (which is the practical import of Myth number 5 if we believe what Narey’s document is telling us) leads to the parents being unrepresented for the most draconian order that can be made. Article 6 anyone?

Myth 5 is not correct in any meaningful way – Care and Placement Orders are now inextricably bound up together and so, therefore are their timetables.

When the document says that it is a myth that 26 weeks apply to Placement Orders, that’s just not correct in any meaningful way in the real world. If you want to seek a Placement Order, you’re going to be doing it on a 26 week timetable, or persuading the Court to grant a s32(5) extension of that timetable in accordance with Re S.

 

Bustin’ makes me feel good.

 

 

I’ll quickly say that when the Myth-Busting document says of Re B-S  The judgment does not make it easier to obtain permission to oppose an application for an adoption order. The test remains the welfare of the child throughout his or her life.  

 

That simply holds no water when you look at the cases – pre B-S no successful leave to oppose, after B-S they are rare but happening.  An adoption order being discharged so that the argument could be re-heard, for example (Re W) On the ground, we’ve gone from leave applications being very unusual to every other adoption application having one.  And reports now of successful leave to oppose cases leading very close to a successful opposition (the High Court saying that it was only due to the exceptional circumstances and facts of the individual case that led to the father’s preference of a Special Guardianship Order not being the final outcome Re N (a child) 2014 http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate )

 

The major plank of LA opposition to leave to oppose applications pre B-S – the impact on the carers of the application, which usually defeated such applications without more, is now rarely deployed, because Re B-S altered the principle dramatically in highlighting that the child’s welfare is not a short term thing, or even during childhood but is to be extended to consider his or her entire adult life.

 

So far as Busting is concerned, this is less Peter Venkman and more this dude  (a figment of the imagination)

 

There is no Narey, there is only Zuul

There is no Narey, there is only Zuul

Why is there something instead of nothing?

 

An age-old philosophical question, and one that every generation finds for itself – I myself remember playground arguments when I was about seven – “If God made everything, then who made God? And who made the person who made God?”    [But then I also remember being taken to the Deputy Head’s Office for a fist-fight about whether the Beatles were better than Elvis]

 

I shall pass that question over to Brian Cox, who can answer it more ably than I can and also with a boyish charm that I would lack. (I think my favourite scientific answer is from Alan Guth “The universe is simply one of those things that happen from time to time”

 

But for our legal purposes, the ‘something instead of nothing’ debate is focussing on adoption, and the soundbite formulation that it appears that the Court of Appeal may be deeply regretting that a Court can’t make a Placement Order unless satisfied that “nothing else will do”

 

Understandably, if you tell a group of lawyers that the test is “nothing else will do”, half of them will find something and argue that if there is something then there can’t also be nothing.  Something else and nothing else are mutually exclusive, surely.

 

The Court of Appeal are in a process of refinement (or retreat, if you want to be mean)

 

Last week, we had Re M H   http://suesspiciousminds.com/2014/10/29/nothing-else-will-do-court-of-appeal-clarification/

 

This one is Re M (A child : Long-Term Foster Care) 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1406.html

 

 

We don’t need to go into the whys and wherefores of why the child couldn’t be with mum, but save to say that it was quite plain that (a) she had problems that she couldn’t fix on her own (b) The therapy that she would need to fix the problems would take at least two years and (c) it wasn’t clear whether she would be fixed at the end.

 

The LA were saying – the timescales for change and prognosis for change mean that the child can’t wait for the mother to make those changes, and thus nothing else than adoption will do.

 

The mother’s case seems to have been that the Court should embark on a course of therapy, see how the first 6 months had gone and THEN make the decision.

 

The Court instead arrived at a “something” which involved the child being in foster care, subject to a Care Order until such time as mother was ruled as being capable of meeting the child’s needs.

 

[That sentence probably has a mixed response. If you are English or Welsh AND a lawyer or social worker, you’ll think it is nuts. If you are a parent, you’ll think it sounds fair. If you are a Scottish lawyer or social worker, you might think it sounds reasonable, because that’s an approach that is foreign to England and Wales but something that occasionally happens in Scotland.]

 

 

This was a case in which the Recorder had given three judgments, at various stages (the final judgment, an addendum giving clarification and then a judgment on the LA’s application for permission to appeal).

 

As the Court of Appeal illustrate, the reasoning is not perhaps ideal when you lay the three judgments alongside each other. My first draft used the word ‘inconsistent’ but the Court of Appeal say that to call it inconsistent is inappropriate, so I changed my words.

 

 

21. The Recorder’s three judgments do not sit easily together and nor does his thinking emerge clearly from them. There are, on the face of it, inconsistencies in what he says. I am not entirely sure whether this is because he was inconsistent in his thinking or because, in so far as his true reasoning emerged, it only did so gradually over the course of the three judgments.

 

22. I can illustrate what I mean by contrasting the end of the permission judgment with the earlier judgments. Concluding the permission judgment, the Recorder expressed himself in a way which suggested that he saw foster care as catering for the next two years or so, until the possibility of L returning to live with M had been fully explored. In the earlier judgments, in contrast, there was, at times, a sense that he contemplated that L would remain in foster care for the rest of her childhood, probably reflecting a different strand of his thinking which was about the importance of continuing the relationship between L and her parents through contact. The end of the permission judgment reads:

 

“This is a case where it will become apparent in 2 years or perhaps less whether M will be able to care for her daughter, when it is established if she will respond to therapy/treatment. If therapy and treatment is successful, M will be able to apply to discharge the care order. If, as foreseen by Dr Penny, there is a possibility, if not a strong possibility, that therapy fails (sic)…. LA can then make a fresh application for a placement order.”

 

23. The first judgment, in contrast, included passages such as those which I have set out below, which I think show that the Recorder was considering long-term foster care with contact as an option in its own right which would potentially endure throughout L’s childhood, albeit that there are some allusions suggesting that he may also have had in mind the possibility of a return to M’s care following therapy (see for example, §64 and the end of §74). The first two passages show the importance that the Recorder attached to continuing contact and the final one appears to be contemplating indefinite long-term foster care in order to maintain that contact:

 

“I find that the particular needs of L for the present are for her to be cared for in a ‘secure, warm and loving family that is able to meet all her needs’ and, crucially, for continuing the existing and loving relationships with her birth parents by way of direct contact.” (§72, my emphasis)

“I am also concerned that L will interpret being cut off from M as being a ‘punishment’ for having behaved wrongly…. “(§73)

“I do not think that this analysis [the guardian’s analysis of the shortcomings of long term foster care] places sufficient weight on the importance of maintaining direct contact with her parents. It is an evaluation which does not explain why long term foster care ‘will not do’, to paraphrase, slightly, the words of Baroness Hale in a number of cases. I accept that foster placements may not be as stable or secure as adoption orders, but some succeed, just as some adoptions fail. There is no reason for the local authority to be unnecessarily intrusive in a long term fostering placement. She should be able to enjoy a relatively normal childhood, save that she would be seeing her birth parents during contact, rather than living with one or other of them.” (§78)

 

24. In the second judgment, which the Recorder expressly did not intend to affect his conclusions in his first judgment (§81), there are passages which seem to merge the idea of long-term foster care as a freestanding option and foster care as a way of preserving the possibility of a return to M. This can be seen, for example, in §88 where the Recorder commented that the social worker had not considered what L’s wishes would have been if she had been offered the option of “long term foster care with direct contact continuing and her mother receiving treatment and the possibility of return to her mother’s care if the treatment was successful”. It can also be seen in §93 where the judge comments on the Statement of Facts as follows:

 

“Again, there is no analysis of the option of long term foster care, with its benefits of continuing the strong bond between M and L and the possibility of return to her care if she successfully undergoes the therapy and other interventions.”

 

 

25. The passages that I have quoted so far leave the reader unclear as to the design that the Recorder had for long-term foster care, whether it was to be a vehicle for preserving contact or the means of providing an opportunity for a return to M if her therapy succeeded or both, but it would probably be inappropriate to describe them as inconsistent. However, I agree with LA that the Recorder’s rejection of temporary foster care as inappropriate for L at §76 is difficult to reconcile with the order that he made which, on one view, provided for just that, certainly if events were going to develop as the Recorder contemplated at the end of the permission judgment.

 

 

The option of long-term foster placement being the right option for the child was possible (and it might be possible to have made a case for the plan that the Recorder ended up with), but as the Court of Appeal say, that’s going to require a very clear and reasoned judgment

 

 

27. In the course of argument, Mr MacDonald submitted persuasively that the difficulties in the course taken by the Recorder were demonstrated in practical terms by the problem for LA in deciding what type of foster care should be chosen for L if his order were to be upheld. He had created, it was submitted, an undesirable half-way house between true long-term foster and short-term foster care which was the worst of all worlds for L. There is force in that submission. The Recorder’s plan for L had built into it uncertainty and insecurity. It also incorporated delay for a period potentially extending to 2 years. Delay, on the evidence before the Recorder (which was in familiar terms), was likely to harm L’s chances of a successful adoption placement if, ultimately, that was the proper outcome for her. Indeed, he himself accepted that a decision about whether adoption was appropriate needed to be made as soon as possible because a successful adoptive placement was more likely now than later (§72).

 

28. To justify a decision such as this would require the clearest of reasoning, particularly in the face of the very guarded prognosis for M’s therapy. I am afraid that this is absent from the Recorder’s judgments. I cannot reliably tell whether he proceeded as he did in order to leave open the possibility of L going home to one of her parents if therapy were to prove successful or because he considered that her relationship with them was such as to require preservation through contact, notwithstanding the disadvantages for L of the long-term foster care which would be the inevitable corollary of that. Furthermore, I am not confident that he gave weight to the guarded prognosis for successful therapy, or took into account the advantages for a child of her age of adoption and the disadvantages of long-term foster care, or bore in mind the advice that he had accepted at §72 (see below) as to the need to deal with the adoption question sooner rather than later. He seems to have been inclined to minimise the disadvantages of foster care, on the basis that long-term foster care would be better than short-term foster care and that LA would not be “unnecessarily intrusive in a long-term fostering placement” and L could have “a relatively normal childhood” in that context (§78). In this regard, he was, in my view, overly optimistic, not least because, with the best will in the world, LA would not be able to avoid involvement in L’s life because of their statutory duties to protect her as a looked after child.

 

 

 

But there clearly was “something” here, and “something” that the Recorder had not been satisfied should be ruled out. So, in the presence of “something” there’s an absence of the “nothing else” for the nothing else will do test, surely?

 

 

Well, no. The Court of Appeal explain that the shorthand test incorporates within it the more important concept that one is looking at [emphasis in italics is the Court of Appeal, underlining mine]

 

 

30. The “recent authorities referred to above” are Re B (a child) [2013] UKSC 33 and Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965. What is said in these authorities about the need to consider all the options and to sanction adoption only if nothing else will do must be interpreted with a careful eye to the realities of a child’s life. Delay is one of factors that always has to be taken into account in determining any question with regard to a child’s welfare, see section 1(3) Adoption and Children Act 2002 (ACA 2002) and section 1(2) Children Act 1989 (CA 1989). But whether an individual child’s welfare requires adoption depends on many other factors besides delay. A vital starting point for what those factors might be in a given case is the list in section 1(4) ACA 2002 (and its equivalent for Children Act proceedings in section 1(3) CA 1989) but these are not of course exhaustive lists. It is to be noted that the child’s age features in both of them.

 

31. The fact that speedy action will improve the prospects of a successful adoption for a particular child of a particular age must take its place in the overall appraisal of the case. Sometimes when considered with all the other factors, it will dictate that the court approves a plan for adoption of the child, even when full weight is given to the important reminders in recent cases, starting of course with Re B, that steps are only to be taken down the path towards adoption if it is necessary.

 

32. What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at §77 of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:

 

“It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests.” (my emphasis)

I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child’s interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them.

 

 

 

The Court of Appeal had been asked to make a Placement Order, but decided that the case needed to be resubmitted for re-hearing.

 

We are continuing to refine / retreat from “nothing else will do” and our soundbite test is really ending up to be quite a nuanced and long test, rather more like

 

The Court must look at each of the options for the child, consider which are remote and which are possible, and of the possible options consider whether they are contrary to the interests of the child to pursue them. If there is an option that remains that is a less interventionist order than adoption, that should be preferred.

 

That isn’t snappy, it isn’t catchy, it isn’t memorable  – but if we learned anything from the “imminent risk of really serious harm” debacle  (maybe we didn’t) it is perhaps that Courts should stick to nuance and long formulations and the statute and leave  catchy slogans to Don Draper

 

[It is therefore not Adoption > long-term fostering for the child therefore adoption, but long-term fostering being an option for the child that although possible is not in their interests]

Nothing else will do – Court of Appeal clarification

We have been waiting a year for something like this, so this is quite a swift post pointing you to it and giving you the relevant quotations.

I wrote a piece for Jordans a long while ago, saying that whilst the “nothing else will do” test appears at first glance to be simple common sense English, there are a number of possibilities for what it actually really means

 

http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/nothing-else-will-do-why-the-last-resort-won-t-necessarily-be-the-last-word

For example, which of these following definitions of ‘nothing else will do’ is actually right?

(1) There is genuinely, literally, no other option that could be conceived of.
(2) The other options available are appreciably worse for the child than adoption would be.
(3) There are other options, but they require a degree of intervention by the state (ie the local authority) that they would in effect be unworkable.
(4) There are other options, but they require a degree of intervention by the state that the state says is disproportionat (at some stage, the R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1 decision is going to come into play).
(5) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 26-week PLO timetable.
(6) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 8-week extension to the 26-week PLO timetable that is permissible in ‘exceptional’ circumstances.
(7) There are other options, but in order to make use of them, the court would be extending the decision-making process to a point where the delay would be harmful for the child and the harm can not be justified [that is really where we have historically been].
(8) Any of the other options would cause harm to the child or carry with it a significant risk of harm to the child, and weighing up the options, adoption is the least harmful of all of the options available.
(9) Another one/ten that I have not thought of yet.

 

 

[I do sincerely apologise for quoting myself, and don’t mean to do so in a Presidential manner, it is just that I knew I’d already written somewhere else exactly what I wanted to say here, and it seemed crackers to rewrite it from scratch]

 

So, which of those is it? Do the Court of Appeal finally help?

 

Re M-H (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1396.html

 

It involves an appeal from my own Designated Family Judge, so I’m rather relieved that her decision was upheld (otherwise it is slightly awkward to write about) but not my own Local Authority.

 

The appeal was brought largely on the claim that the Judge at first instance had applied the wrong test for the making of a Placement Order.

 

This is what the Court of Appeal say  (underlining as ever, mine for emphasis)

 

  1. The ‘correct test’ that must be applied in any case in which a court is asked to dispense with a parent’s consent to their child being placed for adoption is that statutorily provided by the sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002 interpreted in the light of the admonitions of the President in Re B-S (Children) [2013] EWCA Civ 1146 which drew upon the judgments of the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and rehearsed previous jurisprudence on the point. The “message” is clearly laid out in paragraph 22 of Re B-S and needs no repetition here.
  2. However, I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words “nothing else will do” to the exclusion of any “overriding” welfare considerations in the particular child’s case.
  3. It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of “nothing else will do” automatically bites.
  4. It couldn’t possibly. Placement orders are made more often in anticipation of finding adoptive parents than with ones in mind. Plans go awry. Some adoption plans are over ambitious. Inevitably there will be a contingency plan, often for long term fostering. The fact of a contingency plan suggests that ‘something else would do at a push’, the exact counterpoint of a literal interpretation of “nothing else will do”, and it would follow that the application would therefore fail at the outset.
  5. The “holistic” balancing exercise of the available options that must be deployed in applications concerning adoption is not so as to undertake a direct comparison of what probably would be best but in order to ascertain whether or not the particular child’s welfare demands adoption. In doing so it may well be that some features of one or other option taken in isolation would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits. But this is not to say that finding one or more benefits trumps all and means that it cannot be said that “nothing else will do”. All will depend upon the judge’s assessment of the whole picture determined by the particular characteristics and needs of the child in question no doubt often informed by the harm which s/he has suffered or been exposed to.

 

Boiling that down – it does not mean that there are literally no other credible options, nor does it mean that there are no other credible options which offer benefits. It means really that the Judge must choose the right option for the child’s needs but have in mind that if the child’s needs can be met by a less drastic order that should be preferred to adoption.

 

And that if a Judge is going to make a Placement Order, the judgment will need to set out the other options, assess their credibility and explain why they have not been followed.

 

It is really about judgments being rigorous and robust and analysing the pros and cons – I think for the last nine months we have all been swept along on replacing one set of stock judicial window-dressing phrases for another, that as long as the phrase “nothing else will do” peppers the case and the documents and the judgment that will suffice.  The real message of Re B-S for me, was that the options have to be set out with proper rigour as to what they would mean for the real child in the real case.

Insert appropriate Coldplay reference here *

 
CC (Adoption application : separated applicants) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4815.html

This is a decision of the High Court, relating to two married applicants who were married and living together when

(a) They were approved by the Local Authority as adopters
(b) The child was placed with them for adoption
(c) The application for adoption was lodged with the Court

BUT by the time the Court was considering whether to make the adoption application, they had separated.

This is quite an unusual situation – this is the third such reported case where this has happened and in each of them the Court has gone on to make an adoption order to both applicants determining that this is in the child’s interests.

In the first of these, Re WM (Adoption: Non-Patrial) [1997] 1 FLR 132 Johnson J was at pains to point out that

“I am not to be thought to have lent judicial support to the making of adoption orders in favour of separated couples as a general rule.”
[But, just as we saw with Re D earlier in the week, once the Court unstoppers the bottle for one case, that genie can be summoned up in others. The only way for a Judge NOT to make a precedent when doing something brand new, is to not report the case]
In this case, the statutory fly in the ointment was said to be section 42(7) of the Adoption and Children Act 2002.
(7)An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given— .
(a)where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency, .
(b)in any other case, to the local authority within whose area the home is.
The Court recognised that the wording of the Act there is somewhat vague as to whether what is intended is that the Local Authority are able to see the child in the home AFTER the application is lodged in the preparation of their report, or whether they just need to have been able to see the child in the home of the adopters AFTER placement.

The latter was clearly met in this case, because the child had been with the adopters for a year before the application was made. The former was more tricky, since the adopters had split up fairly shortly after the application was lodged before the Court.

The Court say

There was some debate during the course of the hearing as to when the opportunities to see the child must have occurred. Must they have occurred after the adoption application has been made or can they have occurred before? There is no specific timeframe referred to in sub-section 7; it simply requires the court to be satisfied that there have been the requisite opportunities. I do not propose to deal with this issue because it is clear that, in this case, there have been ample opportunities for the local authority to see M with the applicants “together in the home environment” both before and after the application. Miss R has visited the home on many occasions. I am, accordingly, satisfied that the provisions of s. 42(7) are fulfilled.
And the Court being satisfied that there is no fly in the ointment, went on to consider the welfare checklist and give reasons why a joint adoption order is the right thing for the child.

[Incidentally, those reasons seem to give broad encouragement to anyone else in this position and would seem to support the making of a joint adoption order to anyone in a similar position in the future unless the separation was particularly acrimonious]

But were the Court looking for that fly in the right jar of ointment?

I suggest (and am grateful to Natasha Watson on this for doing all of the real brainpower and legwork) that the real legal difficulty here is in s50.

Section 50 is dealing with the circumstances in which an adoption order can be made – and then relies on a definition in s144(4).

[It was the most controversial and most debated clause of the Act – bearing in mind that this was back in 2000/2001, because it was the part of the Act that opened up the possibility of adoption by gay couples. I once had the misfortune to have to read all of the Parliamentary debates on the Adoption and Children Act and nearly 75% of the discussions were about this particular clause, so rest assured that this section had more scrutiny than any clause in modern Parliamentary history – it indisputably says what Parliament finally agreed it should say]

50 Adoption by couple.

(1)An adoption order may be made on the application of a couple where both of them have attained the age of 21 years. .
(2)An adoption order may be made on the application of a couple where— .
(a)one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and .
(b)the other has attained the age of 21 years.
If the Court are making an adoption order to two people, as here, it needs to be satisfied of two things :-

1. That they are both 21 or over (no problem in this case)
2. That they are a couple

The Act then defines “couple” for those purposes in s144(4)
(4)In this Act, a couple means— .
(a)a married couple, or .
(b)two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.
At the time that the adoption order was being made, the two adopters here were married to one another, but were not living together. So they are married – but are they a “married couple” ?

In a common sense definition, could one really describe them as a “married couple” or even “a couple” ? If they aren’t, then they can’t have a joint adoption order.

Can you be a ‘married couple’ or described as ‘a couple’ once you’ve split up? Or are you a married couple until you get the decree absolute?
Do you want a concrete illustration? You may recall the news earlier this year that Chris Martin and Gwyneth Paltrow had ‘consciously uncoupled’ and gone their separate ways. They are still married.

Are Chris Martin and Gwyneth Paltrow a married couple?

If they aren’t, neither are these two adopters. And on that basis, the Court is not able legally to make an adoption order to both of them.

[The Court HAS, and it is done, and it will be added to the law books as authority for the Court doing this, and next time it happens it will be relied upon as authority for the Court to do it again – but unless you would really describe Chris and Gwyneth as a ‘married couple’ then it would be a mistake in law]

Another issue that arises in relation to this is that if we are going to describe two married people who no longer live together or wish to as “a married couple” than we no longer have equality.

Look at the second limb of s144(4)
b)two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.
If we are going to say that two people who are married continue to be a ‘married couple’ until they divorce, then we are no longer treating married people and people in an enduring family relationship the same.

Because married people can split up and still get the adoption order, but cohabiting people can’t.

If two people in an enduring family relationship make the adoption application and then break up before the order is made, then they would not satisfy s50.

You can’t be in an ‘enduring’ relationship once there’s a separation. By definition, it hasn’t endured.

Thus, the Court is discriminating (IF we are saying that Chris and Gwyneth are still a married couple) in favour of married people in a way that they wouldn’t do in relation to two people who were cohabiting.

[See THIS article in the Daily Mail
http://www.dailymail.co.uk/news/article-2800896/marriage-no-better-cohabiting-legal-rights-abolished-adulterous-judge.html

for judicial differences of opinion as to whether married people and cohabiting people ought to have the same rights. I take no responsibility for your sense of moral well-being or compassion after reading a piece in the Daily Mail. I can save you the trouble and say that the Mail is more on the side of Coleridge (marriage is best) as opposed to Mostyn (we should stop favouring marriage over cohabitation in law) and decide that the best way to sift this debate is to indulge in personal attacks.  If Coleridge J is the sort of person to keep a scrapbook, he might have been reaching for the bottle of Gloy Gum for this one ]
I suppose that the next Court to tackle this issue can say that for the purposes of s50 and s144(4) two people who are married remain “a married couple” until such time as they divorce.

After all, just this month we have seen Judges decide that article 8 of the Human Rights Act doesn’t apply to the Court deciding private law proceedings (re Y http://www.familylawweek.co.uk/site.aspx?i=ed134192 – even when the Court of Appeal expressly said otherwise in Re A ) and that if a clause in statute says “must” that can be simply ignored – (Re X.
http://www.bailii.org/ew/cases/EWHC/Fam/2014/3135.html )

 

 

Now, I can put an image in here – the two obvious competing ones are a nice photo of Chris Martin’s new paramour, or a bottle of Gloy Gum.

 

oh joy, it's gloy!
*Re the title, the piece is obviously crying out for a lyric or song title from Coldplay, but I’m afraid that I subscribe to the Alan McGee school of thought that they are ‘indie bedwetters” and thus I don’t have a glib reference.

Nothing else will do? A head-scratcher

 
The Court of Appeal’s decision in Re W (Children) 2014

http://www.familylawweek.co.uk/site.aspx?i=ed134050

This was an appeal by the mother in relation to the Judge’s decision to make Care and Placement Orders in relation to the youngest three children of a sibling group of nine.

As we all know, the Court can’t make those orders (post Re B and Re B-S) unless satisfied that “nothing else will do”.

This appeal was refused, and leaves me scratching my head about what is actually meant any more by “nothing else will do”
The nub of this appeal was really that the children’s existing foster carers would consider putting themselves forward to permanently care for the children. That might be either as adopters or as Special Guardians.

The mother had been asking for the Court to adjourn the hearing, to have an assessment of those foster carers as Special Guardians.

That application was refused and the Court had gone on to make Placement Orders.

Now, the critical thing here for Re B-S and “nothing else will do” is that here there is a valid and viable placement option – placement with the current carers as Special Guardians, which would not have been expressly considered within the social worker’s Re B-S analysis, and which is an option which would have to be explicitly ruled out by the Court in order to say that “nothing else but adoption would do”

[There was, I am sure, an argument that even if these carers were to care for the children that it should be under Adoption rather than Special Guardianship, but the Re B-S formulation suggests that the Court isn’t looking at whether adoption is BETTER than the other options or has advantages or lacks the disadvantages of the alternatives, but that each of the other realistic options is ruled out. It has never been really clear to what standard the Court is supposed to be ruling them out – but “nothing else will do” is NOT the same as “nothing else is quite as good as adoption”]

The other complication here is that the Guardian, in written evidence, was AGAINST the making of Placement Orders and in support of the current carers caring for the children permanently. It appears that the Guardian shifted their position during the final hearing (and by shifted, I mean “did a reverse ferret” )

“Following discussions with the Local Authority, an amendment to the care plan has been proposed which provides for the Local Authority to assess the foster carers as adopters. The guardian was clear that even if these foster carers are not approved as adopters and if it means that D has to be separated from G and M, he still considered, following his analysis, that adoption was the right and only option available for these children.”

24. That summary of the guardian’s position is of note because it is in apparent contrast to the guardian’s position in writing as recently as 12 January 2014, a week or so before the hearing commenced, having summarised the position of the children and the three younger children and in particular highlighted the priority that the guardian gave to the benefit achieved from their current foster home.

25. The guardian says this at paragraph 62:

“That opinion, therefore, is, at this time, not to support the placement order application of the Local Authority naming D, G and M. The current foster carers are willing to care for all three children in the long term and have been seen as very capable of meeting the children’s needs to date.”

26. Then in his recommendations, the guardian is express. He says:

“I recommend that the court does not make a placement order on naming D, G and M. However, I reserve the right to change this position until after I have heard the evidence and opinions of Dr Butler and she having read this, my final report.”
Dr Butler, the child and adolescent psychiatrist who had reported in the case, had provided a very clear written report on the issue of whether the children could be placed at home with mother, but had not got into the merits of the various other forms of ORDER.

It seems that Dr Butler had been asked about this in oral evidence.

19. The judge then concluded her summary of Dr Butler’s evidence with respect to the younger three children in the second part of paragraph 29 where the judgment says this:

“As far as D, G and M are concerned, Dr Butler thought it would be helpful if they could stay in their current placement. She would be concerned about separating them for adoption. She said that they have survived as a sibling group. They all need therapeutic work some form of play therapy. She was clear in her oral evidence that only adoption would give them the stability they need.”

20. All, save the last sentence, of that quotation is a almost direct lift word for word from the concluding paragraphs of Dr Butler’s report. The key sentence for the context of this appeal is the last one where the judge records the doctor as being clear in her oral evidence that “only adoption” would give the children the stability that they need.

21. Dr Butler’s report, whilst analysing the children’s position very clearly, does not actually descend to an opinion one way or the other on the issue of adoption or long term fostering or some other form of placement. All we have in this court in terms of the evidence of Dr Butler on this point is, firstly, this sentence in the judge’s judgment and, secondly, a copy of counsel for the Local Authority’s handwritten notes taken during the hearing which in particular obviously does not include any question and answer record of counsel’s own cross examination of the doctor.
So, going into the hearing, in their written evidence, both the Guardian and Dr Butler were saying that the best thing for the children would be to remain in their current placement. (But in oral evidence, although the details are sparse, both said adoption was the right thing for the children, although the reasoning is not very well set out and the Judge largely bases the conclusions on the position of those two witnesses)

The mother was saying that if they could not come back to her, she would want the children to remain in their current placement – she would prefer any form of order other than adoption. If there HAD to be adoption, she would want it to be with the current carers, rather than with strangers.

The Local Authority position was that there should be adoption – they would do an assessment of the current carers but only as adopters – if they were approved as adopters that would be Plan A. But if they were not approved as adopters, Plan B would be to find other adopters NOT to look at different orders that would allow the children to stay with those carers.
Now, there might be a raft of reasons why the Judge eventually preferred the evidence of the Local Authority and decided that this really was a case where “nothing else would do” other than adoption, but if that’s the case there needs to be some very heavy lifting done in the judgment.

It is a shame, therefore, that the Court of Appeal have to say this about the judgment

31. Some time ago I indicated the narrow focus of this appeal and the concern expressed by my Lord Jackson LJ in granting permission to appeal. The concern is one that, on the papers, I share. It arises from the difficulty that any reader of the judgment has in understanding two matters. First of all, what it was that Dr Butler and, in turn, the children’s guardian said in oral evidence which justified, in Dr Butler’s case, at least a clarification of her view that adoption was the only option and, in the guardian’s case, a change from his position of not supporting the placement applications to holding that in any circumstances adoption was the only order for these children. The second related difficulty that any reader of the judgment has is understanding what it was that the judge thought about these matters as leading in her view to making these final orders, particularly in the context of the outstanding, albeit recently identified, need to assess the foster carers. Rhetorically, the question is asked: why was it necessary to make the final orders on this occasion?
When you look at some of the successful appeals in relation to Placement Orders (I think particularly of the one where both parents were in prison at the time the orders were made), this case looks to have successful appeal written all over it. If you read the judgment and can’t see how the Judge reached the conclusions at the end, then post Re B-S, that’s the sort of judgment that gets overturned. Or rather, it WAS.

There was an option before the Court that was substantially less draconian than adoption by strangers, and to rule out that option would surely have needed rigorous analysis.

Instead, the Court at first instance seemed to have placed very heavy emphasis on adoption being the only form of order that would prevent the mother disrupting the placement.

[It MIGHT be that this was a mother who had been going to the foster home, being undermining and abusive, making phone calls or sending letters – that isn’t set out in the extracts of the judgment that we have been given in this report though, and surely it would be. So we can discount that as a possibility. There MIGHT be circumstances where the risk of mother disrupting a long-term foster placement or Special Guardianship Order with these carers was simply unmanageable, but it would need to be spelled out why the Court couldn’t control this with all of the legal remedies (s91(14) orders, non-molestation orders) at its disposal]
In any event, there seems very little weighing up of the proportionality issue and that the Court should be looking for the least interventionist form of order where possible. Unless the risk of disruption was so high and utterly unmanageable, that’s a feature of adoption which is beneficial or advantageous to be put into the balancing exercise, not a determinative factor, surely?
42. If the judge’s judgment were the only material available, it is a document upon which it is hard to rely in terms of gaining any detail as to what it was that Dr Butler said about adoption and why it was that the guardian changed his opinion. The court has made efforts to try and obtain transcripts, but they have come to nothing. The note of counsel takes matters so far, but does not provide in anyway a total answer. Yet the appeal has to be determined. In particular, there is now a pressing need for the appeal to be determined because of the prospect of the children being matched, if the appeal is unsuccessful, with these prospective adopters. I considered countenancing an adjournment to obtain a transcript, but to my mind, that is not necessary.

To be honest, I had always considered that this was the real thrust of Re B-S and the successful appeals that followed – that the Court of Appeal looks at the judgment and if the reason for making the orders is not robust and rigorous within the document, then the judgment is wrong.
In this case, the judgment sets out that the Judge agreed with the Guardian and expert that nothing else but adoption would do, but doesn’t set out WHY either of those witnesses reach that conclusion (particularly since the Guardian was saying something different in writing), or WHY the Judge agreed. The Court of Appeal, for reasons that aren’t plain to me, decided that was okay.

This appears to me to be the strongest appeal since Re B-S was decided, but although many rather flimsy appeals have been granted, this one has been refused.

The reasoning appears to be that although the judgment as delivered is somewhat sparse, the parties did not invite the Judge to fill in the gaps. (that’s not something that was mooted in the flimsier successful appeals)

45. So while it does seem to me that although this court lacks the precise detail of the actual words used by these two key witnesses, we are entitled to take as the baseline the judge’s summary of what was said. It is absolutely clear in the terms that I have described. So having gone into the matter in more detail than was possible on the occasion that my Lord considered the permission application, I am satisfied that the judge must have had the clear professional oral evidence in the terms that she has summarised, which, in turn, enabled her to consider the options for these three children.

46. I therefore turn to the lack of reasons given in the judgment. This court has from time to time had to consider the absence or submitted absence of full judicial reasoning in cases across the civil justice spectrum, but perhaps particularly in the context of family justice.
47. There are a number of relevant authorities, but the most convenient is that of Re: B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, the decision of this court presided over by Thorpe LJ and Bodey J in 2003. They had the benefit of a judgment given one year earlier by my Lady Arden LJ in the case of Re: T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736. In the course of that judgment, my Lady considered the applicability of the ordinary civil authority English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 to family cases. My Lady held that there was no distinction to be drawn on the question of principle as to the need for the requests to be made to judges at first instance to amplify their reasons in family cases just as in civil cases.

48. The law report is available to all. I do not intend to lengthen this judgment by repeating what my Lady said in Re: T, save to quote from paragraph 41 to this extent. My Lady said this:

“It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”

49. That approach was unsurprisingly endorsed by Thorpe LJ in the course of his judgment in the later case of Re: B. He in turn at paragraph 11 said this:

“No doubt I have hesitated as to how best to respond to these submissions. I regard a number of the criticisms of the judgment as ignoring the seniority and experience of this judge. No doubt a judge recently appointed or only recently inducted to public law would not reach the milestones and signposts to ensure that no essential stage of the process is overlooked or truncated… But there is a huge virtue in brevity in of judgment… The more experienced the judge, the more likely it is that he may display the virtue of brevity. Certainly it is not incumbent upon the judge to adopt some formula of a judgment or simply to parrot statutory provisions. For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions?”

50. The judge in this case, as I have described in the quotations from her judgment that I have set out, gives short reasons and, in effect, identifies her reasoning as being at one with that of Dr Butler and the children’s guardian.

51. They in turn conclude that the only option is adoption. If a true reasons challenge was to be mounted in relation to this judgment, the proper course to be adopted would have been to go back to the judge at the permission to appeal stage before the first instance judge, which I do not think was undertaken in this case, and to raise the reasons challenge and to invite the judge to enlarge upon the reasons that she has given. That simply was not a step that was taken here. Insofar as the mother was a litigant in person, she is not to be criticised for that, but the reality is that step was not taken. It was not taken at a later stage when, for a time, the mother had the benefit of some legal representation.

 

 

Re W makes it even more difficult than it already was (and it was already extremely difficult) to hazard a guess at how the Court of Appeal will decide any appeal on a Placement Order. Which in turn makes it even harder for the Court at first instance to know what the Court of Appeal expect to see in a bullet-proof judgment. And harder for advocates to advise their clients on the merits of an appeal and prospects of success.

I think that there MIGHT be cases where the Court could reject a plan of long-term fostering or Special Guardianship with the current carers and decide that “nothing else but adoption will do” – it will depend heavily on the circumstances of the case. But it is clearly a considerably difficult hurdle to surmount and the judgment would need to reflect the rigorous and robust analysis of why the current carers are not an option, and the judgment would need to be cogent as to the reasons for that decision.

Correction – the last sentence there is how I would have IMAGINED the law to be, but post Re W, who knows any more?

I am slightly surprised (to put it mildly) that the appeal did not dwell more on the judicial refusal of the application for an adjournment in light of Re MF – finding out whether these carers could keep these children seems to me to be a piece of information whose absence does prevent the Court from resolving the proceedings justly and that the adjournment was necessary.

The Court of Appeal simply say this (in effect – because the Judge was in favour of adoption, it wasn’t a piece of information that the Judge needed. Again, scratching my head on that one)
64. The judge in the present case was plain that the expert and professional evidence was to the effect that only adoption would do for these three children. That was also the judge’s conclusion. Therefore, in my view, as a matter of structure and of law it would not have been open to the judge to contemplate the court carrying on to oversee the assessment process of the foster carers if a placement for adoption order was to be granted at the end of the day.

65. The working out of the plan for the assessment of the foster carers and the development of an alternative plan if they were not acceptable as long term carers for the children were matters and should be matters for the Local Authority under the placement for adoption order and the care order and not for the court. So as a matter of structure, I am not persuaded by Ms Jones’ submissions.

66. In any event, we would only be able to intervene and overturn the judge’s conclusion on this point if we were satisfied that the judge was “wrong” and that she had acted in a disproportionate manner in making a placement for adoption order at this stage without proper regard to the Article 8 rights of the children, which may well include the relationship they have with the current foster carers. It simply is not open, in my view, to the mother in this case to sustain that submission.

67. The evidence before the judge was that adoption was what was required. It was necessary to take a decision at that stage partly to avoid delay, but partly to achieve clarity. On the evidence before the judge which she accepted, no other outcome other than the adoption of these children was justified unless that could not be achieved. Therefore, there was no benefit for the children in holding back from making a final order at that stage. It was the only tenable outcome of the case on the evidence and on the findings of the judge. So even within the compass of the appeal as it was on paper before my Lord when he gave permission and this court before we had the extra information from the Local Authority, I would refuse the appeal on that basis.

 

As more general practice for appeals, the Court of Appeal put down this marker about transcripts of evidence
70. I wish to add brief comments on one procedural issue. From time to time when this court grants permission to appeal, it directs that the evidence of a particular witness be obtained. If the appeal concerns the adoption of children, it is by definition an urgent matter and the hearing will be listed at an early date. Indeed, as here, the court granting permission to appeal may direct an expedited hearing.

71. In such a case, the parties must use their best endeavours to obtain any transcript of evidence which is required as soon as possible. If, as here, the transcript cannot be obtained in time, then solicitors and counsel should co operate in producing a composite note of the relevant evidence.

72. That did not happen in this case. Instead, part way through the hearing today, counsel for the Local Authority stood up and informed us that she had a note of the evidence given by Dr Butler and the guardian. In those circumstances, the hearing was adjourned for 40 minutes so that counsel’s note could be photocopied and considered by all present. I say at once that counsel’s note of the evidence is clear and extremely helpful, although it does not include her cross examination of the two witnesses. I am grateful for the copy of that note which we have received.

73. Nevertheless, in any future case where a necessary transcript of evidence is not obtained in time for the hearing, then any available notes of the relevant evidence must be circulated in advance to all parties and the court. That will avoid any risk of ambush. Also, it will avoid the need for an adjournment in the middle of the hearing of the appeal.

 

 

So, just as the President has shown us in Re X that “must” in a statute means “ah, just ignore that bit”,  the Court of Appeal have now shown us that when they said in Re B-S that “nothing” else will do, they didn’t mean that a possible placement with existing carers under an SGO or long-term fostering could be SOMETHING else that might do. They meant an entirely different kind of nothing.

 

This wouldn’t be  teh interwebs if I didn’t use that as an excuse for the Inigo Montoya meme.

 

No, I am NOT the Red Viper of Dorne

No, I am NOT the Red Viper of Dorne

step-parent adoptions and nothing else will do

The Court of Appeal in Re P (a child) 2014 considered an appeal from a Judge who refused a step-parent adoption having applied the law (or at least the gloss on the law applied in the last year)

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1174.html

 

Boiling it down to one question – does ‘nothing else will do’ apply to step-parent adoptions where the biological parent who is being ousted as the legal parent doesn’t consent?  Well, of course it does, one would immediately say. The whole thrust of Re B was about ‘non-consensual adoption’, that’s a  non-consensual adoption. And the whole hook of Re B was using the word ‘requires’ in the s52(1) (b) test  to carry with it a huge additional weight of proportionality and nothing else will do – running counter to the former President’s decision in  a previous  Re P that ‘require was a perfectly ordinary English word’  to import a meaning  that was much much more. (To be fair, that’s an additional amount of meaning taken directly from the ECHR decision of  Y v UK, which in effect was ‘the ECHR lets the UK persist in its weird ideas about adoption, but we only tolerate it if you take it bloody seriously’)

 

The legal test for dispensing with the father’s consent to make a step-parent adoption  (and these cases are almost always about fathers being cut out of children’s lives and legal relationship of fathers being severed – you just don’t get many stepmother adoptions) is s52(1) (b),  – the child’s welfare requires consent to be dispensed with.

 

So, of course, it must be ‘nothing else will do’.

 

And if it is “nothing else will do” then it is going to be spectacularly hard to demonstrate that for any proposed step-parent adoption  (not just that it would be better for the child to make the order but that there is literally no other solution – ie the status quo can’t remain for reasons which are hard to fathom, looking from the outside)

 

So, nothing else will do almost certainly kills off step-parent adoptions.

No, the Court of Appeal say otherwise.  (I will make it plain that I think this decision is wrong, but it’s the law, and we are stuck with it. I think it flies in the face of common sense, ignores the principle of least interventionist order and is particularly prejudicial to birth fathers)

 

Here is the Court of Appeal test for step-parent adoptions  (drawn from a 1999 ECHR case, Soderback v Sweden, which distinguished between State adoption and adoption within part of the biological family)

 

a) There is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents (for example as in Johansen v Norway) and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents;

b) Factors which are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent [‘Parent B’], and thereby make it more likely that adoption is a proportionate measure are:

i) Where Parent B has not had the care of the child or otherwise asserted his or her responsibility for the child;

ii) Where Parent B has had only infrequent or no contact with the child;

iii) Where there is a particularly well established family unit in the home of the parent and step-parent in which ‘de facto’ family ties have existed for a significant period.

 

Those all seem to me very good reasons for a step-father having PR, but why are they good reasons for making an adoption order and changing a step-father into a legal father, and changing the biological father into a person with no connection to the child whatsoever?

 

The Court of Appeal do say that where the biological father is involved and opposes, the position is that the adoption should be a rare event and that the case ought to be resolved by making private law orders instead (there’s the ability to grant a step-father PR, or Child Arrangement Order (residence), even a Special Guardianship Order – although that would be insane, because it would give the step-father the legal power to override the birth mother. That’s so crackers that… it will probably happen within the next year)

 

In so far as the earlier domestic cases to which I have made reference establish that, in the event of Parent B being actively opposed to a step-parent adoption, practical arrangements should be dealt with by private law orders, that approach is entirely at one with the modern private law relating to children which seeks to determine aspects of the delivery of child-care and the discharge of parental responsibility either by parental agreement or by a child arrangements order under CA 1989, s 8.
 

The making of an adoption order is primarily, if not entirely, concerned with the legal status of the relationships between the child, his natural parent(s) and the adopter(s), rather than practical arrangements. Thorpe LJ’s words in Re PJ adhering to the aptness of earlier cautionary dicta, and reminding professionals of the need to be aware of the motives, emotions and possible unrealistic assumptions about any new family unit, remain as wise and sound as they were when uttered in 1998. In this manner, the approach of the domestic case law sits easily alongside that of the ECtHR in Söderbäck v Sweden

 

The earlier authorities on contested step parent adoptions thus still apply, despite their antiquity so here they are

 

In Re D (Adoption: Parent’s Consent) [1977] AC 602 the House of Lords gave consideration to a step-parent adoption application made by a mother and her new husband, which was opposed by the child’s father. Lord Wilberforce, at page 627, laid stress on three matters:
 

 

i) that under the statutory test for dispensing with parental consent, as it then was, the child’s welfare was only one consideration; the test being ‘reasonableness’ (Adoption Act 1958, s 7); 

ii) consent should only be dispensed with in rare and exceptional cases, and this was ‘all the more so in cases … where the adoption is desired by one natural parent and the other refuses consent';

iii) an adoption order, which is irrevocable, should not be used to deal with practical considerations concerning custody, care and control or access.
Dicta of the Court of Appeal (for example that of Bagnall J in Re B (Adoption by Parent) [1975] Fam 127 at page 146) endorsed the third of these points and indicated that, in the event of the other natural parent opposing a step-parent adoption, the court would strive to achieve an outcome by ordinary private law orders rather than adoption.

 

 

This is going to make the issue of service of the birth father a very critical issue. If the birth father has been served and doesn’t turn up, the Court will probably make the step parent adoption order if it can be shown that the current family unit is settled and happy and that the birth father’s role has been limited. If he does turn up, the Court will probably NOT make the order.  Thus, making sure that the birth parent has been served is vital, and of course the likelihood is that these applications will be made after mum and birth father have been estranged for some years and without the benefit of public funding.

 

Being late to the party (turns out Auntie Beryl was Grandma Beryl…)

 

KS v Neath Port Talbot 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/941.html

 

This was an appeal by the grandmother who was refused her application to be joined as a party to care proceedings, which resulted in Placement Orders. She put herself forward in a formal application five days before the final hearing.

 

The Judge arrived at a sort of half-way house, refusing party status for the grandmother, but allowing her to be in Court, to give evidence and to ask the father’s representatives to put questions on her behalf. This unusual position was not helped by the Judge believing when judgment was delivered that the grandmother’s primary application had been dismissed by the Judge on day one of the final hearing (it hadn’t, it had been adjourned for decision until the end of the case)

 

 

 

  • Some five days before, on 9 October 2013, the child’s paternal grandmother had made a formal application to be made a party to the proceedings and for an expert assessment concerning her capability to care for the child. The application was adjourned at the beginning of the hearing and refused at the end. The effect of the adjournment was, however, to refuse the grandmother party status for the hearing that was taking place. Despite this, the judge permitted the grandmother to remain in court during the hearing and to give oral evidence. He records in his judgment that the grandmother:

 

 

“… opposes the applications and has played a part in these proceedings in as much as she has given evidence and has put herself forward as a potential carer for her grandchild”

 

  • There was a real issue before this court about what the judge intended to decide by his case management ruling. Although it is clear from the words he used that he adjourned the grandmother’s application until the end of the hearing on the merits, when he refused it, he later recollected (erroneously) that he had refused her application at the beginning of the hearing. Furthermore, although he failed to grant to the grandmother some important due process protections that a party would have, in particular notice of the issues in the case and knowledge of the evidence filed relating to those issues, he afforded the grandmother a partial opportunity to participate in a hearing which decided those issues.

 

 

The trial judge’s determination of the grandmother’s case was fairly short, and viewed criticially by the Court of Appeal

 

 

  • The terms in which the judge dealt with the grandmother’s application at the beginning of the hearing are as follows:

 

 

“This is an application for leave to make an application under section 8 of the Children Act. I bear in mind that this is a very late application and I bear in mind the Family Proceedings (sic) Rules and the overriding principle that I have just referred to. Although this is a late application, it has the potential for disruption not only of these proceedings but the interests of this child.

I am not going to shut the grandmother out of these proceedings at this stage. She can stay and hear the evidence, she can stay during all the proceedings, she can find her seat comfortably with other parties and she will be able to give evidence and through the solicitor for the father she can cross examine the author of the assessment that was made of her which was negative. I, therefore, adjourn her application to a stage in the proceedings after all the evidence has been completed. I do so in balancing the fairness to all the parties here and to the child.

There will be no ostensible delay of these proceedings by doing this, I allow her interests at least to be considered and for her to hear all the evidence as it potentially may interest the third party.”

 

  • At the end of the hearing the judge refused the application for five reasons that involved no analysis of the evidence, no analysis of the content of the assessment of the grandmother or the potential merits of her case, as follows:

 

 

i) the late nature of the application and the delay that an additional expert would occasion;

ii) the nature of the grandmother’s proposed application, namely for a residence order which the judge described as lacking in detail;

iii) the limited connection with the child: the judge accepted that there was an emotional attachment but erroneously described the continuous and significant contact arrangements as being “some ad hoc inter-familial arrangement for contact”;

iv) the real disruption that the application would cause to decision making about the child’s immediate future; and

v) the fact that the grandmother did “not fall within the remit of the local authority’s plans”.

 

  • As to the merits of the grandmother’s case, the judge was brief. The analysis in his full judgment was limited to the following words:

 

 

“The original assessment of the grandmother on 12th July of 2012 was negative. There is scope to believe that things have not so fundamentally changed that that report should stand to be considered as being valid. Any contribution as sought by the grandmother would require considerable analysis of the family dynamics, including of course an exploration of the father’s upbringing which itself has been the subject of various explanations, and also the management of contact. That was the view of the Guardian and I accept it. There is no merit in the application for the grandmother to care for the child. I appreciate that she may well have a kind heart and show commendable maturity as a grandparent herself in conceding that the time is now right for a decision to be made in respect of [the child].”

 

 

On the other side of the coin was the grandmother’s case, and the Court of Appeal felt that she had a better case than the Judge had recognised

 

 

  • The grandmother’s case was that she has a meaningful connection with the child who had regular contact including staying contact with her. That contact had existed before the child’s placement with the great grandparents, had continued after that placement had ended and was still taking place during the proceedings on a twice weekly basis. In addition, the July 2012 assessment acknowledged that the paternal grandmother and her husband displayed genuine emotion for and were clearly concerned about the child’s future. They were assessed as being fully aware of the local authority’s concerns about the parents and the child’s care needs. There was a significant attachment between the child and her grandparents that would be severed by the adoptive plan. By the time of the final hearing, the child’s parents supported the grandmother’s application.

 

 

 

  • The assessment also described the manifestly good care that was provided by the grandparents for a 14 year old boy and a 12 year old girl within what was evidently a long term stable relationship. There were no concerns about their parenting abilities in respect of these children and there had been no involvement of children’s services.

 

 

 

  • The local authority response to this court about the merits of the grandmother’s case was that the positives in the assessment were outweighed by the negatives which included the paternal grandmother’s partner having significant mobility problems such that he might not be able to assist with his granddaughter’s care. There were also fears about the impact the parents might have in undermining a placement with the grandparents, the appropriateness of the grandparents’ accommodation and the grandparents’ commitment to the children already cared for by them and whether that would be compromised by another child in the household.

 

 

 

  • In my judgment, the analysis of the negatives in the local authority’s evidence and by the guardian did not exclude the grandparents as a realistic option. To put it another way, the grandparents’ prima facie case on paper was stronger than that of the local authority relating to them. It is difficult to conclude other than that the grandparents’ case was arguable on any basis. It went to the critical proportionality evaluation of whether ‘nothing else would do’ than adoption. The grandmother’s application accordingly demanded rigorous scrutiny of the factors set out in section 10(9) of the Children Act 1989 in the context of the reasons for the late application.

 

 

Decision

 

  • The paternal grandmother submits and I agree that the case management decision that the judge made was plainly wrong because it was procedurally unfair. If, by his case management decision, it was the judge’s intention to exclude the grandparents from the care of the child, then he did not have regard to evidence relating to the section 10(9) factors or to the potential merits of her case which he would have found in the content of the assessment to which I have referred. His reasons lacked sufficient or any analysis. Case management decisions that have the character of deciding a substantive issue must be treated with particular care: hence the nature and extent of the enquiry that is made necessary by section 10(9) of the Act and its associated case law.

 

 

 

 

 

  • The purpose of section 10(9) of the 1989 Act and the case law that supports it is defeated if there is no analysis of the benefits and detriments inherent in the application and the arguability of the case. The section provides a framework for decisions of this kind to be made so that there is an appropriate balance between case management principles and the substantive issues in the proceedings. Furthermore, the lack of attention to detail and in particular the lack of analysis of what had been happening during the proceedings in particular as between the local authority and the grandmother and the child, including the timetable for the child and for the proceedings, deprived the decision of the character of individual and collective proportionality that application of the overriding objective would have provided. In simple terms, the decision was too superficial and un-reasoned to stand scrutiny.

 

 

 

  • If it was the judge’s intention to consider or re-consider the grandmother’s case at the end of the evidence, in what would then have been an holistic overview of the options to which a welfare analysis and proportionality evaluation were applied, then he failed to put in place any procedural protections for a person whose case was distinct from the other parties. In particular, his decision at the beginning of the hearing had the effect of refusing to make the grandmother a party, thereby denying her access to the documents so that she could challenge matters relating to her own case and condemned her to giving evidence without knowledge of the relevant evidence in the case. The essential due process protections of notice of the issues and an opportunity to challenge evidence relating to those issues was missing and in my judgment that was also procedurally unfair.

 

 

 

  • By reason of the manner in which the case management decision was made, the evidence relating to whether grandmother was a realistic option was not identified and tested. It was neither tested by reference to applicable case management principles nor substantively as one of the options in the case about which the court was hearing evidence with the usual due process protections. The judge allowed the issues raised by the grandmother to fall between two stools. That was plainly wrong and as a consequence the process was procedurally unfair.

 

 

 

  • At the end of the hearing, the case management decision made by the judge was re-iterated as a substantive decision to exclude the grandparents from the care of their granddaughter. Whether or not the grandmother as a non-party to that decision has the locus to challenge that aspect of the case, the mother does. She submits that as an exercise of value judgment it was wrong and in any event the judge failed to conduct a non linear, holistic welfare analysis and proportionality evaluation of all of the care and placement options and that was an error of law. The judge did not reason why the grandparents were to be excluded, there is no comparative welfare analysis of the benefits and detriments of each option and a proportionality evaluation is entirely missing from the judgment. Further and better reasons of the judgment were requested but they do not assist in any of these respects. That has the effect that there is no consideration in judgment of the effect on the child of breaking family ties, in particular her attachment to her grandparents and whether nothing else would do other than adoption.

 

 

 

  • In summary, the grandmother supported by the mother submit that the judge failed to address that which is required by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 in analysing whether ‘nothing else will do’ and the subsequent Court of Appeal cases of Re P (A Child) (Care and Placement: Evidential Basis of Local Authority Case) [2013] EWCA Civ 963, Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re B-S (Children) [2013] EWCA Civ 1146. I agree. There was no overt analysis of the child’s welfare throughout her life nor the likely effect on her of having ceased to be a member of her original family in accordance with section 1(2) and 1(4)(c) of the 2002 Act. The distinctions between the factors in the welfare checklists in the 1989 Act and the 2002 Act were not explored. The essence of the recent case law and of the statutory tests was not sufficiently demonstrated.

 

 

 

  • The local authority concede that the judge’s approach to the welfare analysis and proportionality evaluation was not in accordance with the authorities. Their case rests on the ability to exclude the grandmother from that exercise. That would have involved an analysis by the judge of the timetable for the child and the timetable for the proceedings as part of the overriding objective, the section 10(9) factors and the arguability of the grandmother’s case. That analysis was missing with the consequence that neither the grandmother’s case nor the local authority’s case was properly considered during case management and the grandmother’s case was not considered on the merits. It is fortunate that the child’s interests can be protected by an expedited re-hearing before the Designated Family Judge for Swansea.

 

This does seem to be the right decision for the child, but it raises real questions about the 26 week timetable.  It has been a long-standing question as to what the Court of Appeal would do with a Judge that refused in an adoption case to allow a delay to assess a relative who came forward last minute, and now we know. If the Judge is robust and looking at the new wording of the Act and the principles of the Act in relation to delay and achieving finality, they run the risk of being successfully appealed.

 

There’s another Court of Appeal decision forthcoming which does much the same in relation to giving a parent more time to demonstrate the ability to provide good enough care (even when the proceedings had reached 64 weeks http://www.bailii.org/ew/cases/EWCA/Civ/2014/991.html  ), so the message here is somewhat muddled.

In speeches, it is 26 weeks can happen, it must happen, it will happen.

 

In the cases that hit the Court of Appeal it seems to me more – 26 weeks can happen, it must happen, it will happen – but to those other cases, not the ones we’re looking at.

So can a Judge who delivers that sort of robust judgment, refusing delay, be confident that the Court of Appeal will back them?  That’s exactly what happened with the ‘robust case management’ that was supposed to be the underpinning of the Protocol and PLO Mark One.  If the Court of Appeal aren’t really behind the 26 weeks, and the appeal process takes forever (as presently), then won’ t Judges cut out the middle man, save time and just allow the adjournment requested knowing that the Court of Appeal will probably grant it eventually anyway?

 

 

*To be scrupulously fair, this Court of Appeal decision, though only now released, was decided in March BEFORE the Children and Families Act 2014 came into force. But hardly in ignorance of the culture, and the main judgment was delivered by Ryder LJ, a major architect of the revised PLO.

 

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