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Local Authority lawyers should grow a pair

This post contains 95 per cent of your Recommended Daily Allowance of Sarcasm and 119% of your Recommended Daily Allowance of Dopiness


Well, it isn’t quite put like that, but it isn’t far off.   I appreciate that for a substantial amount of my compatriots, it isn’t even biologically possible.


You see, it turns out that the adoption statistics are our fault.  We all knew that there was about to be a blame game  (heaven forbid that anyone should even consider whether the direction of travel might be a good thing, or a bad thing or a neutral thing before embarking on the blame exercise), but it turns out that the finger points at Local Authority lawyers, who, as I say, are going to be told to ‘grow a pair’

[Even though I speculated today that the next judicial edict would be that the LA final evidence must be written in iambic pentameter and rather than being typed, the social worker would have to sew it using cross-stitch, this rather surprised me.  “It turns out that the Bayeux Tapestry was really just contact notes”… I fully anticipate that Dallas PD will be questioning all Local Authority lawyers about JFK shortly]


Martin Narey, Adoption Czar  (or is it Tsar? I can never remember, but it always does remind me that the career trajectory of Czars and Tsars, both in historical leader sense and in political oversight sense hasn’t been that stellar) has given a speech at the Association of Directors of Children’s Services.


He is thus talking to the uber-bosses of all social workers, the capo del tutti capi of social workers.

Whilst I’m not the largest flag-waving champion of Mr Narey, and I’m unlikely to ever make his Christmas card list, I will give credit where it is due. He has put that speech up online, so that people can read it. He didn’t HAVE to do that, so good on him for doing it.

Flag is going back in the cupboard now.


It isn’t really surprising that he opens with a discussion about the adoption statistics. To be fair (oh, flag coming back out), if you’re the Adoption Czar and there’s a big political drive to get adoption numbers up, then when they absolutely tank, you’re BOUND to want to do something about that. If you don’t, then you’re sort of redundant. Probably literally as well as figuratively.


Mr Narey refers to the drop being a result of two major Court decisions, Re B and Re B-S, and reminds us all that he helped to produce a Myth-Busting document that picked up a lance and slew the dragon of misconception, so these adoption figures should recover, thanks to his intervention.


He talks about the number of ADM decisions for Placement Orders to be sought going down 52% last year, and he says this    (If I’m crabby here, it is only PARTLY because I can’t cut and paste from his slides and have had to type the whole thing out. Only PARTLY)


“But these are not as a result of the Courts rejecting Placement Order applications in vast numbers. The drop is overwhelmingly explained by a drop in Local Authority Placement Order applications. They have dropped from 1,830 to 910, a decrease of almost exactly half.


Unless you believe that all those adoption decisions you made last year were not in the interests of those children, I urge you to ensure that your social workers and lawyers have not lost their nerve, and the President’s exhortation that you must follow adoption when that is in the child’s best interests is followed. If current figures do not recover, then over time, we shall see adoption numbers drop back very substantially indeed.


I don’t think adoption can ever be suitable for other than a minority of children in care. But I think that minority is probably more than 5,000 or just 7% of the care population”


Well, where to start?

As an argument “Unless you believe that all those adoption decisions you made last year were not in the interests of those children”  so get out and make some more – ideally 50% more , leaves a lot to be desired. Firstly, it is an emotive appeal. Secondly, saying ‘If you think all those cases where you recommended adoption, you were right’ inexorably leads to   ‘a lot of the ones where you didn’t, you must be wrong’ is some strange use of logic that I’m not familiar with.  Of course ADMs who make a decision that adoption is the right plan for a child do so believing that this is in the best interests of the child. But why on earth should that mean that they were wrong with those that they rejected?

That’s like saying  “remember all those times you bet on Red in the casino and you won? Well, forget about the times that you bet on Red and lost, or you bet on Black and won, clearly betting on Red is the right approach. Go heavily into Red. “

Next, if you think that Local Authority lawyers have lost their nerve, then you need to get out in the trenches with us. There has NEVER been a harder time to be a Local Authority lawyer.  I don’t say this to garner sympathy (I know that many of my readers think that lawyers, and LA lawyers in particular, are the devil incarnate – they are wrong, it is just me), but it is the truth.  It is breathtakingly offensive to say that we have lost our nerve.

Nor have social workers.


Perhaps the Adoption Tsar doesn’t know that actually, a lawyers’ job is to give advice but take instructions. We don’t EVER say to a social worker that they can’t put forward a plan of adoption or ask the Agency Decision Maker to approve that plan. We tell them whether or not such a plan is likely to succeed in Court, and we tell them what the strong and weak points of their case is, and we give them advice on what they can do to improve the weak points and how to present their evidence in the way that the Courts now require.

What we do not do, is advise the ADM  “you should approve adoption here”  or “this isn’t an adoption case”.  Even back in the days of Adoption Panel, where a lawyer sat in the same room as the Panel when they made the decision about whether it was an adoption case or not, we didn’t get to make any representations about it or to vote.  Our role was, and still is, limited to giving advice on any legal issues that arise, not to advise the ADM on the merits or otherwise of the case.


Mr Narey’s argument here is presumably, theat if Local Authorities had asked the Court to make 1,830 Placement Orders after Re B-S, the Court would have made them.   (And perhaps if we’d asked for 4,000, the Court would have made them too).


The reason the adoption statistics dropped was because we were stupid and didn’t understand Myth-Busting !  (TM)  or because we were too timid to ask the question – social workers and Local Authority lawyers have been metaphorically teenagers who want to ask someone out but end up not being able to get a word out when we are near the subject of our affections. What Mr Narey is saying to us is “Hey, that person you like is TOTALLY into you, and they would TOTALLY say yes if you asked them to go to the pictures with you”

It is of course telling that with that 52% drop in applications for Placement Orders, I have not heard of a SINGLE case where a Judge seized of all of the facts and evidence, said to the Local Authority “I cannot believe that you are putting forward a plan that doesn’t involve adoption here, I really think that you should reconsider”  , or given judgments that say “none of the options put forward for this child are sufficient to safeguard their well-being, and I adjourn the final hearing so that matters can be reconsidered”



I think that it is interesting that whilst this speech makes great play of the President’s decision in Re R, and even quotes from it approvingly, it misses out two really major elements of Re R.


The first is this one:-


in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B, paras 198, 215.’


[And to save you flipping back to Re B, that, precisely, is THIS


para 198: “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.” 

para [215]:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.” ]


If a Judge makes a Placement Order without engaging with that test, the judgment will be deficient. If a Local Authority present their case without striving to meet that test, their evidence will be deficient.

The Court of Appeal in Re R also made it plain that all of the stipulations laid down in Re B-S about the quality of the evidence, the need for robust and rigorous child-specific analysis of all of the realistic options and the Court not proceeding in a linear manner still stand.


The second omission is of course,

On 11 November 2014 the National Adoption Leadership Board published Impact of Court Judgments on Adoption: What the judgments do and do not say, popularly referred to as the Re B-S myth-buster. This document appears to be directed primarily at social workers and, appropriately, not to the judges. It has been the subject of some discussion in family justice circles. I need to make clear that its content has not been endorsed by the judiciary.


I have set out before, here, what the Court do and do not say in Re R


As I said in that piece, the ‘myths and misconceptions’ that the Court of Appeal were slaying were the ones that nobody actually believed were right – even the lawyers advancing those claims that “Re B-S means that if the positives and negatives aren’t set out in tabular form, adoption must be rejected” didn’t actually believe what they were saying.  (It’s one of the advantages of being a lawyer, you don’t have to believe what you are saying in order to say it…)


Mr Narey is quite right that the Court of Appeal are clear that where the only option that will meet a child’s needs is adoption, that’s the order that should be sought, and the Court will adjudicate on it. If the social worker thinks that of all of the realistic options, adoption is the only one that can meet the child’s needs, then they can and should go to the ADM to seek approval of that plan. And likewise, if the ADM thinks that, then they can and should approve the plan. And likewise, if the Court conclude that, they can and should make the adoption order.


That is encapsulated by this passage

‘[44] … Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.’


If a social worker, or an ADM think that this test is made out, then there’s no reason at all why they shouldn’t put forward a plan of adoption. It might be that when the evidence that lead them to think that is tested in the burning crucible of cross-examination, it is found wanting, but that’s how litigation works.


I can’t help but note that Mr Narey in his speech quotes a section of the President’s judgment from Re R  [what he doesn’t do is quote all of the bits in italics are a key part, which rather change the meaning if you ENTIRELY miss them out]


It is apparent, and not merely from what Miss James and Miss Johnson have told us, that there is widespread uncertainty, misunderstanding and confusion, which we urgently need to address.

[41] There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’, that ‘adoption is a thing of the past.’ There is a feeling that ‘adoption is a last resort’ and ‘nothing else will do’ have become slogans too often taken to extremes, so that there is now “a shying away from permanency if at all possible” and a ‘bending over backwards’ to keep the child in the family if at all possible. There is concern that the fact that ours is one of the few countries in Europe which permits adoption notwithstanding parental objection is adding to the uncertainty as to whether adoption can still be put forward as the right and best outcome for a child.

[42] There is concern that Re B-S is being used as an opportunity to criticise local authorities and social workers inappropriately – there is a feeling that “arguments have become somewhat pedantic over ‘B-S compliance’” – and as an argument in favour of ordering additional and unnecessary evidence and assessments. It is suggested that the number of assessments directed in accordance with section 38(6) of the Children Act 1989 is on the increase. It is said that when social worker assessments of possible family carers are negative, further assessments are increasingly being directed: “To discount a kinship carer, it seems that two negative assessments are required.” There is a sense that the threshold for consideration of family and friends as possible carers has been downgraded and is now “worryingly low”. Mention is made of a case where the child’s solicitor complained that the Re B-S analysis, although set out in the evidence, was not presented in a tabular format.

[43] We are in no position to evaluate either the prevalence or the validity of such concerns in terms of actual practice ‘on the ground’, but they plainly need to be addressed, for they are all founded on myths and misconceptions which need to be run to ground and laid to rest.

[44] I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.


I appreciate, space is at a premium and when you’re giving a speech you don’t necessarily want to quote great chunks of a judgment, but when you quote as selectively as this, you are turning a passage in a judgment that is saying that where really ridiculous arguments about Re B-S are being used, those are fallacies into something which suggests that Re B-S says nothing of any consequence at all.  It is just plain misleading.


Ignore for a moment the “nothing else will do” formulation (although, as outlined above, it is still good law, just not in the ludicrously over-literal way that the Court of Appeal were initially using it).  These are the other changes in child protection law and adoption law since Re B.


1. The test for an appeal Court is now whether the Judge was  “wrong” and not whether the Judge was “plainly wrong”.  That is a substantial change, and makes the risk of being appealed in a judgment notably higher.

2. The Court can no longer proceed on a linear analysis.  They MUST look at the pros and cons of each option. This is not a small thing. Prior to this decision, the process was always “look at parent, if no, then look at family member, if no then adoption is all that is left, ergo the ‘last resort’ element is satisfied, it is the last resort because there isn’t anything left”.   If a Local Authority are making a case for adoption, they have to not only show the flaws in the other options, but that the benefits of adoption outweigh the FLAWS in adoption. That requires social workers to fully engage and grapple with the benefits AND flaws of adoption both in general and for a particular child.  If the Adoption Leadership Board want to tackle a single issue, rather than Jedi-hand-waving that ‘this law hasn’t changed, you may go about your business’, training that better equips social workers to do this and proper impartial and evidence-based research about those benefits and flaws would be a damn good start.

3. The rigorous analysis and evidence required as a result in Re B-S is still required.

Let’s look specifically at the example of social work analysis on why adoption was right for a child that the Court of Appeal tore to bits in Re B-S

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”


Prior to 2013, that wasn’t only the sort of thing that you’d see in a social work statement explaining why adoption was the right outcome for a child, it was actually one of the better ones. Prior to 2013, I’d have put that in the top 10% of attempts in a social work statement to explain the benefits of adoption.  This was an A minus attempt.

Let’s look at what the Court of Appeal said

With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.


. Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

40. This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.


I’ll say it again, because this is important. A formulation that I would have put in the top 10% of analysis that I’d been seeing pre 2013 was DESTROYED by the Court of Appeal as being completely inadequate.  An A minus attempt was given an E.   Whether or not Re B-S changed any legal tests, it certainly raised the bar massively for the standard of evidence and analysis required.


4. The test for leave to oppose adoption was dramatically reduced.  Prior to Re B-S, such applications were rare and also very easy to shut down. All you needed was to quote Thorpe LJ in Re W  “However, it cannot be too strongly emphasised that that is an absolute last ditch opportunity and it will only be in exceptionally rare circumstances that permission will be granted after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application.”  and draw the Court’s attention to the facts of Re P, where parents who had gone on to have another child and keep that child, with no statutory order, hadn’t been sufficient to get them leave to oppose.   Now, the test is substantially reduced.   In particular, these two elements from Re B-S.


iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.



vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.


5.  As we have seen, more leave to oppose applications are being made, and more have been granted.  We also see that the Courts have given judgments in cases where adoption applications have been successfully opposed. To date, the reported cases are where a parent has been able to show that another family member could care for the child instead of prospective adopters who have had the child for 13-18 months.  Such a decision would have been unthinkable in 2012, but they are happening now.  What that means is that if a Court is being invited to make a Placement Order, and the LA are inviting the Court to do so, they have to have good, cogent evidence as to why family members are not suitable instead.  If they don’t get that exercise right first time round, then the child will pay the price when at an adoption hearing 15 months later, the Court may be removing the child from adopters and placing with those family members.



All of those things, and Lady Hale’s formulation are real things.  It does nobody any favours to ‘jedi-hand-wave’ them out of existence, particularly by chopping up a quote from a judgment so that a person reading it would think that the Court of Appeal had said:-

There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’… those impressions are based on myths and misconceptions  


when those three little dots are missing out all of the actual substance.


Parliament has created a statutory power of adoption. The tests have been laid down in the Act. The Courts have interpreted how those tests are to be delivered in practice.  The Lady Hale formulation in Re B is the test that the Courts will be working towards. To pretend otherwise is misleading.

It does remain the case that where a Local Authority can show that none of the other options before the Court can meet the child’s needs, adoption is an option that they can legitimately pursue.


It’s disengenous to pretend that people didn’t understand that.  If social workers and lawyers and ADMs hadn’t grasped that, then there would have been NO applications for Placement Orders.  The numbers went down because the difficulty in obtaining a Placement Order from the Court went up.



If the social workers, lawyers and ADMs had ‘held their nerve’ in 2013 and made the same number of Placement Order applications, then the Court would have rejected them in huge numbers.  Maybe they all should have done, and let it become the Court’s problem.

Two years later, the same might not still be the case.  Firstly, the over-literal over-prescriptive appeals seem to have died down a bit. Secondly, social workers have got more used to the rigorous standards that are required in terms of their evidence and are better equipped to present their evidence to those standards.






Opposed adoption – outcome is child being placed with grandparents


Having gone 13 years without a successful opposition to an adoption order under the Adoption and Children Act 2002 (until Holman J’s case in December last year) and now we’ve had two in two days.   (Re S and T 2015 and this one)


Re LG (a child) 2015

In this case, the Court was being asked to consider an application by a parent for leave to oppose an adoption application. The Court granted that application, and as a result the prospective adopters withdrew their application, and hence the child has gone to live with grandparents. So the judgment didn’t actually finalise what the Court would have done if it had gone on to a fully contested adoption (but I’m sure that the prospective adopters saw that the writing was on the wall and didn’t want to subject themselves to further pain and subject the child to delay)


It was common ground that the grandparents were able to offer good care for the child and that had they been considered during the care proceedings, the child would almost certainly have been placed with them.

So why was it that they WEREN’T considered during care proceedings? That would have avoided the child being placed for adoption and been with prospective adopters for nine months?

It is the father’s case before this court that he declined to tell his family about L’s existence because he felt “scared” to tell them as “he had embarrassed and shamed [his] family and let them down again”. As a result, the extended paternal family had no knowledge of L’s existence during the currency of the care proceedings. The father was pressed by professionals, including the allocated social worker and his own solicitor, to explain why he did not want his family to be involved. During the course of these discussions, he alleged that he had suffered physical abuse at the hands of his own father, L’s paternal grandfather. His case before this court is that this allegation was completely untrue and was said with a view to “getting people off his back”.


A word immediately springs to mind about this father, and that word rhymes with ‘glass’  (if you are from the South of England).  He really was an absolute glass in this case.


it is obvious to everyone in these proceedings, and it will be obvious to everyone reading this judgment, that these events have been brought about by the father’s conduct. He is a young man, and he has not had the opportunity to explain his conduct in oral evidence before me. On any view, however, it must be acknowledged that as a result of his actions, a number of people have suffered very greatly. Mr and Mrs A, and their older child, have had to endure the terrible ordeal of losing the little girl to whom they had made the extraordinary commitment that all prospective adopters make. Furthermore, his daughter, L, has to cope with the distress and upheaval of moving from the home where she is settled and thriving to live with people she does not know. All this has come about because of the father’s misleading and deceptive behaviour. I hope he will now do whatever he can to ensure that L’s life with his family is as secure as possible.


It is quite hard for me, as someone who does Local Authority work all the time, to see how the LA could have gone ahead with their own assessment of the grandparents given that the father didn’t want them to be approached and made a child protection allegation against them.

The system that we have in place involves the parents putting forward family members – these days the issue is raised at every single hearing and included in the order and parents are warned that if they delay in putting forward a family member it may be difficult to get them assessed later on. Or sometimes, the family member comes forward themselves.

It is effectively an “Opt-in” situation – a family member is approached about being a possible carer for the child if and only if their hat is thrown into the ring.

But in a situation as here, where the family member doesn’t know about the proceedings and the parent doesn’t want them to be told, what can you do?  Remember that the reasons for care proceedings can be very sensitive and parents in care proceedings don’t always have a close relationship with their family. As this father said, there can be a sense of shame in your wider family finding out that you have been accused of something or that you are said to be a bad parent.

From a legal perspective, the fact that a parent is in care proceedings is Sensitive Personal Data for the Data Protection Act, and without parental consent, the circumstances in which you could share that information with a family member is really limited.


And then, looking at the Family Procedure Rules about the sharing of information about proceedings  (which, in the absence of a parents consent would also include that such proceedings even exist) seem to me to be a bar to telling a grandparent that there are care proceedings in order to explore whether they would put themselves forward  – unless there is leave of the Court.

Finally, there are the article 8 considerations.  The father here (even if we think he has some glass-like qualities) has a right to private and family life, and that can only be interfered with if it is proportionate and necessary.

So, all in all, I think that if there’s a scenario in which family members are known about but the parent objects to them being involved, that’s an issue that has to come before the Court and a decision made.  (I can think of a LOT of situations where a father or mother would be perfectly legitimate in not wanting members of their family to be involved)

I’m not sure that even that is a total solution.


Suppose a Court (or a Practice Direction) says that in any case where adoption might be the alterantive that rather than an “opt in” (throw your hat in the ring) system that instead the LA will get out there and chase down and assess any family member who might be suitable.

Okay, you might catch grandmother and grandfather in your net that way, but only if the parent is willing to give you their details so that you can find them.  How big is the net? Do you stop at Uncles? Great-Uncles? Cousins? Don’t forget friends – the Act is all about connected persons -or families and friends. You might be able to get a family tree out of a parent  (though good luck in doing it with parents who are in the grip of heroin use and who don’t engage with the process at all), but are you going to get a full and exhaustive list of all of their friends too? What if they make new friends between the care proceedings and the adoption application?

If you cast the net wide enough to catch everyone, then you are going to have an unholy amount of investigation and checking to do to give the Court information about everyone in the net to be sure that there’s not someone there who could be a carer for this child. You aren’t going to do that within 26 weeks. Hell, even finding some of these people can take longer than that.

And is a Local Authority (or a Court) really going to push for an assessment of a grandfather in a case where his own son (as here) says “When I was a child, this awful thing happened to me”?   On a twenty-six week timetable? I think not.

So I see what Baker J is getting at when he says this :-


although I have no specific criticism of this local authority’s work, (which I have not had an opportunity to examine in detail), this case illustrates the crucial importance of identifying at an early stage in public law proceedings any potential family members with whom a child can be placed. Local authorities must strive to identify the best possible methods of identifying such placements, and must not easily be distracted by comments made by natural parents which may conceal the truth.


I am not at all sure that this sentiment survives any contact with the real world, when you think what is involved.

The Judge is as nice as he can be to the prospective adopters, but I’m sure these words are as small a consolation as the consoling words given to parents after  care proceedings are

    1. My final observations are addressed to Mr and Mrs A. I can hardly begin to appreciate the anguish that you, and your older child, must now be feeling at losing the little girl whom you accepted into your care and looked after in an exemplary fashion. Although the birth family undoubtedly had a strong argument for opposing adoption, I do not know for certain what order I would have made at the conclusion of a contested hearing. You have made the courageous decision not to proceed with your application and to allow L to return to her birth family as soon as possible. I had not been told in detail the reasons for your decision but, from what I have read, I am confident that you would not have taken this step unless you believed it to be in L’s best interests. In those circumstances, I have nothing but admiration for your actions. I know that there will be some contact between L and you and your other child, although the details are yet to be agreed. I am sure that, as she grows older, L will come to understand and appreciate the wonderful things that you have done for her, both in looking after her for the past eight months, and in making this great sacrifice that has enabled her to be returned to her birth family.



There is a legal argument about the fact that father’s case at this hearing was really both an application for leave to oppose an adoption order AND a simultaneous application by the grandparents for a Special Guardianship Order, and thus whether the grandparents application (which required leave) should be heard under that test. The Court weren’t persuaded by that.

Counsel for the prospective adopters made what I think are some telling and important points about public policy – they didn’t succeed, but as more cases about adoption involve long-drawn out contested court hearings and a degree of unpredictability about the outcome, that is going to inexorably lead to less and less people being willing to put themselves through that.  I’ve represented adopters in the past and they all utterly dreaded the Court hearings and didn’t sleep and worried about the outcome – and that was in the days when I’d be able to advise them that the prospects of the adoption order not being made were vanishingly tiny.

As Ms Hyde of counsel says – the only real way for adopters to protect themselves and the child that they are considering as a family member in Court proceedings, is to delay the application so that it has been two or three years since the child came to live with them, so that no Court would contemplate moving the child.  That’s the exact opposite of what the Government are trying to achieve with adoption, and I’m sure that also there are many good reasons why that lack of finality and the order itself is not good for the family dynamics  (otherwise why ever have the adoption order? Just stay on a Placement Order forever)


Miss Hyde submits that the court should give particular weight to policy considerations. She contends that, if the court now allows an application which may thwart a successful adoption application, there will be grave and wide-ranging policy consequences. First, Miss Hyde submits that it will lead to a reduction in the pool of prospective adopters who will be discouraged from coming forward if there is perceived to be an increased risk of a late challenge to the adoption after the child has been placed. Secondly, she submits that the advice to future prospective adopters would inevitably be to refrain from making the adoption application until the child has been placed with them for a number of years so as to reduce the risk that the application will be opposed. This would be contrary to public policy because it would extend the period of uncertainty for the child. Thirdly, she contends that it will be extremely difficult for any court to control the timetable for assessment of family members in care proceedings, and thus the policy of identifying such placements as quickly as possible, which is an important feature of the Public Law Outline, (now in Practice Direction 12A of the Family Procedure Rules), will be undermined.


I think Miss Hyde is right on every single aspect. Does it mean that the Court were wrong in this particular case? No, I don’t think so. But these legal decisions can’t be looked at in isolation.  They are an interesting discussion point for us lawyers, but if you are a prospective adopter who has taken a child into their home and into their heart, a case like this is a shockwave.

The Judge said this

  1. The crucial point, however, is that the purpose of all these policies is to serve the overall welfare of children. Where the law requires the court to give paramount consideration to the welfare of the individual child, and her welfare clearly points to one particular outcome, it would be manifestly wrong to allow her welfare to be overridden by any policy considerations.
  2. Furthermore, anyone reading this judgment will realise that the circumstances of this case (the father’s deceptive and misleading conduct, and the subsequent discovery that the birth family is, on the written evidence, manifestly able to care for the child) are very unusual. I hope, therefore, that prospective adopters will not be discouraged from coming forward as a result of this case. Adoption has a crucial role to play in our society and it is very important that people should not be discouraged from putting themselves forward as adopters. Those who do must, however, be advised that, where placement orders have been made, the law allows parents to be granted leave to oppose an adoption application where there has been a change of circumstances and the court concludes that the child’s welfare, which is the paramount consideration, requires that leave be granted. Applications for leave will only be made in a minority of cases and in most cases are unlikely to succeed, but Parliament has allowed the right to apply for leave to oppose adoption applications in such circumstances and all prospective adopters should be advised that this is the law.

When I wrote about Holman J’s case, I wrote that an easy inference about the case was that it was an extraordinary set of circumstances that would never arise again and it could be discounted,  it was a stable door that could be shut although one horse had got through and bolted


but that a closer inspection of the case showed that at heart, it was about a family member who wasn’t assessed within care proceedings and could demonstrate that this wasn’t their fault.  That is a set of circumstances that could potentially apply to any case.  This case proves the point.

How can I know, how can adopters know in any case, that every family member who might concievably come forward in a years time, two years time, was considered and dealt with in the care proceedings?  Maybe they weren’t in a position to care THEN, but they are now…

Is there such a thing any longer as an adoption application that is water-tight and can be considered as a sure thing?


This isn’t the last of these. Not by a long shot.


I look forward to seeing the Myth-busting document on these developments.



And we can throw in a word like “circumcision” / cos we ain’t going in for Eurovision


In Re W (Children) 2015, the Court of Appeal had to deal with an appeal arising from a refusal to grant a parent leave to oppose the making of an adoption order.  [I know that like Rizzle Kicks you are saying “Let’s snip to the good bit” – have patience, it is about a third of the way down the page]


As the case was being dealt with by the President (amongst others), we were always going to begin with an admonishment about Practice Directions.

I interpose to observe that this is yet another example of practice which is not merely unacceptable for reasons which ought to be obvious – the court needs to know both the author(s) and the date of such a document – but is in fact in plain breach of PD27A, para 4.2. This is not the first time I have had occasion to complain about this in recent months: see Re L (A Child) [2015] EWFC 15. I said this (para 14):

“PD27A para 4.2 states that:

“All statements, affidavits, care plans, experts’ reports and other reports included in the bundle must be copies of originals which have been signed and dated.”

This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child) [2015] EWFC 11.”

I continued (para 23):

“This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough … The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions”.

I spelt out what those sanctions might involve. Here we merely identify the delinquent local authority as Coventry City Council.

It can only be a matter of time before the President issues an edict that prescibes a rap over the knuckles with a ruler for breaches of PD27. Or perhaps a dunces cap, constructed of foolscap paper, to be worn by those responsible for the breaches for the duration of the proceedings.

I can see that it must be irksome for a Judge not to have the signed and dated documents in front of them, this seems a far more legitimate complaint than whether the documents are on double-sided paper. But nonetheless I am adding it to my file of “The Welfare of the Bundle is Paramount” cases.

There were a lot of gripes about the original way that the trial judge managed the application, but it finally turned on this particular point:-

  1. In the first of those two paragraphs, Judge Watson said this:

    “So far as M is concerned there has been a very specific matter which has been raised and has been raised consistently throughout the proceedings and that is that for some reason he was not circumcised. I do not know the reasons for that. It could well be to do with the time and the age he was when he was taken into foster care, but for whatever reason he was not circumcised. The social worker has indicated in her statement that on 3 September there was an agreement that M should be circumcised and I am satisfied that it would be in his cultural and religious best interests to be circumcised. It is what his parents wish and it is a wish which ought to be recognised and perhaps should have been recognised before to date [sic].”

  2. The final paragraph of her judgment underwent some revision. In the draft transcript sent to her for approval, Judge Watson was recorded as having said this:

    “I am therefore going to say that I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the adoption order in relation to B. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

    As approved by Judge Watson the final paragraph reads as follows:

    “I am therefore going to say that I will refuse leave to oppose the adoption but I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the final adoption order in relation to B in 7 days time. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

  3. I have already set out Judge Watson’s order in full. So far as relevant to this point, the key parts of the order are these:

    “upon the court indicating that the Adoption Order for M will be made upon written confirmation to the court that he has undertaken a procedure for circumcision

3 The court has approved an Adoption Order in respect of M such order to be made upon notification of the procedure as set out above.


And that, of course, is the Court making an Adoption Order on a conditional basis, which is not allowed.


  1. The first relates to M’s circumcision. It is tolerably clear from the order, though the language of the judgment (whichever version one takes) is unclear and, to my mind ambiguous, that Judge Watson did not on 29 September 2014 make an immediately effective adoption order in relation to M. According to the language of the order it “will be made” and is “to be made” upon the happening of the specified event. In other words, perfection of an adoption order in relation to M was expressed to be subject to what as a matter of law is properly described as a condition precedent, namely that M be circumcised. Ms Bazley and Ms McGrath submit that the court cannot properly make an adoption order effective only on satisfaction of a condition precedent. As they ask rhetorically, what is to happen if the condition precedent cannot be satisfied? Does one treat the condition precedent as determinative, with the consequence that the child is not adopted – and if so, what is to happen? Or does one treat the decision for adoption as determinative and, in effect, ignore the condition precedent? They pose the questions not for the purpose of inviting answers but in order to demonstrate that such an order is not merely unworkable in practice but also wrong as a matter of principle. How, after all, does an adoption order subject to such a condition precedent meet the ‘adoption as a last resort’ principle spelt out in the authorities?
  2. In the event the issue has arisen in a very practical way because Ms McGrath told us on instructions that the local authority has been unable to identify any NHS hospital or private clinic willing to perform a circumcision on a child of M’s age, absent medical reasons for doing so – a position, we were told, that is unlike to change.
  3. I agree with Ms Bazley and Ms McGrath. Paragraph 3 of the order is irretrievably flawed. It is in a form which is wrong as a matter of substance. No adoption order can be made expressed to be subject to satisfaction of a condition precedent. Accordingly, in relation to paragraph 3 of the order the appeal must be allowed on this ground also.


Nicely argued. You can’t really say that adoption is the last resort (but only if the child no longer has a foreskin).

The underlined bit is odd –  there are a great many male children who have such an operation without there being any medical reasons – we can see the parental desire for this procedure was religious / cultural – so wouldn’t that be your starting point for having the process undertaken?

I can’t find from the judgment how old M was – certainly under the cut-off point for adoption. If he was say five or six, I can see why a GP / hospital consultant might be nervous about the procedure without medical cause. But surely it was a solveable problem. It was perhaps fortunate that the appeal arose, as otherwise this child would have been in a Schroedinger’s Cat style limbo – he can’t be adopted without the circumcision, but the LA can’t get the circumcision done. And no simple vehicle for taking that back to Court to vary the order, and they could have run out of time to lodge the appeal. It could have been very problematic  (which is a major reason why you can’t attach a condition to the making of an adoption order)


The other two legal quirks in the case were these.


Firstly, in the care proceedings, nine days before the final hearing on a younger sibling JE  began, the parents produced a letter from an Aunt who wished to care for the children.  That led the Judge to decide that the case could not be concluded, but that he could conclude that neither parent could care for JE

  1. On 1 September 2014, Judge Cleary gave judgment following what had been intended to be the final hearing in relation to Je. He explained why finality had not been achieved. For present purposes there are two matters to be noted.
  2. First, Judge Cleary recorded his inability to get to the bottom of what had happened in relation to the various assessments of Aunt A. In his judgment he referred in scathing terms to the fact that the case worker “had a woefully inadequate grasp of what was going on, a wholesale lack of relevant papers and no, or no clear knowledge of the passage of information to and from Belgium”. He commented, “It was, as the caseworker conceded, a fiasco.” He directed a further assessment of Aunt A by an independent social worker who I shall refer to as ISW.
  3. Secondly, Judge Cleary ruled out both parents as carers for Je:

    “I have quite enough information in respect of the parents, and enough evidence to require me to conclude that neither [the father] nor [the mother] is in a position to care for Je, and I therefore conclude that a North Yorkshire declaration is appropriate.”

  4. The legal significance of this is that North Yorkshire was a 2008 High Court authority thought by some (me) to have been a pragmatic solution to a tough situation and being hard to justify given what the Court of Appeal said in Re G that it is no longer a linear ruling out process. North Yorkshire is exactly that – the Court ruling out the parents and then having a later hearing to consider an alternative carer/ adoption. I thought North Yorkshire was dead in the water after Re B, R B-S and particularly Re G.

The President gave it an unexpected kiss of life in Re R, but in that case the Court had not been asked to determine that issue and it had not arisen, so his remarks were at best obiter.  Here however, they are ratio and are binding.  It is official, North Yorkshire declarations are compatible with adoption.  (I can’t see how, but I don’t make the rules, I just write about them)

That is a reference to the decision of my Lady, then Black J, in North Yorkshire County Council v B [2008] 1 FLR 1645. That case is still good law: see Re R (A Child) [2014] EWCA Civ 1625. As I said (para 67):

Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out.”

So in principle Judge Cleary was entitled to proceed as he did and there has been, so far as we are aware, no challenge by either parent to his decision.


Flowing from that, just days after the Court had ruled both parents out as carers for JE but embarked upon an assessment of the aunt, by happenstance, the leave to oppose adoption hearing took place, before a different Judge, Judge Watson.

At that time, the ISW had not reported on the aunt as a potential carer of JE (and she was also putting herself forward as a carer for B and M).  Two days after the leave to oppose hearing, the ISW report DID arrive, ruling the aunt out as a carer.


At the time of the leave to oppose hearing then, Judge Watson knew that Judge Cleary had ruled out the parents as carers for JE, but had directed an assessment of the aunt, and the outcome of that assessment was not known.

There’s quite a law anorak debate about whether the findings and decisions of Judge Cleary were binding on Judge Watson, or whether they were a starting point that she was entitled to rely on, but could deviate from if there were reason to do so.

  1. Judge Watson was entitled to take as a starting point, as the factual baseline, the various findings set out by Judge Cleary in his judgments of 12 December 2012 and 31 January 2013 and the fact that on 1 September 2014 Judge Cleary had ruled out the parents as prospective carers for Je: see In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 and In re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, [2015] 1 WLR 95. The same approach applies (see Re Z, para 32) whether the matter is before the same judge or a different judge, whether in the same or different proceedings, and whether in relation to the same or different children. So Judge Watson was entitled to rely on Judge Cleary’s decision on 1 September 2014 even though it arose in the context of the proceedings in relation to Je being heard by a different judge whereas the proceedings before Judge Watson related to B and M.
  2. A judge can revisit earlier findings and depart from them if there is good reason to do so. The approach was indicated by Hale J, as she then was, in Re B, page 129:

    “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence … The court will want to know … whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”

    In Re Z, I said that I agreed with that, though adding (para 33) that one does not rehear a previously determined issue:

    “unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge.”

  3. It is not clear to me that Judge Watson was ever invited to go behind Judge Cleary’s decision on 1 September 2014. In any event, I cannot see that there were any solid grounds for challenging his decision. Judge Watson, in my judgment, was entitled to feed that decision into her overall appraisal of whether – I am leaving Aunt A on one side – there had been any change in the circumstances of the parents.
  4. What Judge Watson said in her judgment on the point was this:

    “sadly for [the mother], on 1 September of this year she was ruled out as a potential parent and carer for Je.

    That of course is a matter of weeks before this decision that I have to take and it is very difficult for me in those circumstances to satisfy myself that she has made those solid and significant changes an her circumstances which would justify me granting her leave to oppose the adoption.

    His Honour Judge Cleary also ruled [the father] out as a prospective carer for Je. Again I am in considerable difficulty in seeking to accept the submissions made by [him] that he has also made an improvement and a significant change in his circumstance such that would justify the grant of leave to oppose the making of an adoption application because that does not accord with the judgment of HHJ Cleary.

    Three weeks [sic] Judge Cleary was unable to accept that there had been a reversal, what I described as a sea change, in [the father’s] approach to the findings and to his involvement in the findings made by Judge Cleary in relation to the parenting of all of the children, but particularly the older children. I was not the judge who heard the fact-finding hearing and I must accept that if Judge Cleary made those findings and concluded the welfare of the children could not be best served by considering placement at home for the children that, if not appealed, is binding on this court, as it is of course on Judge Cleary when he made the decision in relation to Je, and again reviewed that decision in September and concluded that the changes were not significant and that Je could not be returned to the care of his parents.

    I cannot accept that in the light of the findings of His Honour Judge Cleary as recently as 1 September that there has been this change in circumstances, this improvement in the father’s position that would justify the granting of leave to oppose the adoption.”

  5. It might have been wiser if, instead of using the phrase “binding on this court”, Judge Watson had chosen words that better reflected the legal position, but taking these passages in the round, and reading them in the context of the judgment as a whole, I do not think that Judge Watson either misdirected herself in law or proceeded in a manner that was not open to her.


The orders were overturned and sent back for re-hearing, but for all of the legal high-concept and anoraking and argument, it was the Judge’s decision that M should be circumcised before the adoption order was finally made that really won the appeal.

Tales of the unexpected


Mr Justice Mostyn, in dealing with an application for leave to oppose the making of an adoption order, raised a curious (and to my mind rather unique) point.

Prospective Adopters and SA 2015


The statutory test is that in order to challenge the making of an adoption order if a Placement Order has already been made, the parent needs leave, and to get leave, they need to show a change of circumstances.

Most of the case law on leave (notably Re P and Re B-S) focus on the second limb of the test – if a parent shows a change of circumstances, is it in the child’s interests to allow the leave and hear a full challenge to the making of an adoption order.


Mr Justice Mostyn focuses largely on the first limb – what consitutes a change of circumstances?

For him, the change HAD to be something that was unexpected. Something that had not been foreseen, or forseeable at the time that the Placement Order was made.   (for my part, I don’t think that he is right here, but he makes the argument with significant force)

  1. Where, as here, the second condition applies because the child was placed for adoption under a placement order there is a threshold condition of “a change in circumstances since the placement order was made”. The applicant parent has to prove this before the court can move to consider whether leave should be granted to oppose the making of the adoption order.
  2. Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.
  3. In the well-known case of K v K [1961] 1 WLR 802 the court was concerned with section 1(3) of the Maintenance Orders Act 1950 which provided:

    “Where an agreement to which this section applies is for the time being subsisting … and on an application by either party the High Court … is satisfied either (a) that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made … the agreement should be altered so as to make different … financial arrangements … the court may by order make such alterations in the agreement … as may appear to the court to be just in all the circumstances …”

  4. In its judgment the Court of Appeal held that changes which were foreseen or foreseeable at the time of the agreement did not fall within the terms of section 1(3). Holroyd Pearce LJ stated:

    “We think that a change in “the circumstances in the light of which any financial arrangements were made” means something quite outside the realisation of expectations. The parties make their bargain upon certain basic facts and expectations. When those facts unexpectedly change, or those expectations are not realised, there is then a change of circumstances which may produce unfairness. Had the legislature intended to give a power to the court to vary agreements as it may vary maintenance orders, it could have said so in terms similar to the sections which regulate variation of maintenance. It did not, we think, intend to remove entirely the stability of agreements, but only to do so when injustice was caused by a change in certain circumstances.”

  5. This decision led the Law Commission in 1969 to recommend that the provision be altered to include a change of circumstances which the parties had actually foreseen when they made their agreement. This change was duly enacted in section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970 (now section 35(2)(a) Matrimonial Causes Act 1973). The fact that Parliament had to intervene in this specific case shows to my mind that where a provision talks of a change of circumstances it is talking about an unexpected change in the basic facts and expectations on which the court founded its original decision.


I’m not at all sure that I am with the Judge here, but he has clearly given it a great deal of thought and consideration, and delved deep into the legal framework and underpinnings. For myself, I would think that if Parliament had meant in 2002 that the change needed to be ‘unexpected’ it would have been a fairly simple matter to say so (yes, it needs to be something more than simple passage of time) but I think Parliament would have said ‘unexpected’ rather than relying on everyone realising that as a result of a 1961 case about some different 1950 legislation the word ‘unexpected’ would be implicit.


There are situations, in fact they come up fairly regularly, where a parent is said to be unable to make the necessary progress within the child’s timescales. Take for example a parent who is in a relationship with someone abusive and is struggling to leave them or has left them but it comes so close to the final hearing that the Court can’t have confidence that the separation will be maintained. If two years later, that parent comes to Court having been separated from the violent partner for two years, is that an unexpected change?  Or is it rather something that could have been envisaged as a possibility but the Court could not make the child wait for the parent to show that?

Or a case where a parent is wrestling with drugs or alcohol and is endeavouring to become abstinent? Two years later, the parent has the sort of period of abstinence that would give rise to confidence about the future prognosis that didn’t exist at the time the Court had to make its decision.  Is the parent’s abstinence an unexpected change?  Or was it a possibility that the Court countenanced, but given the child’s timescales, the child could not wait for the parent to achieve this?

I think that I would instead rely on the Court of Appeal in Re T (Application to Revoke a Placement Order : Change of Circumstances) 2014 where an test with the same wording was considered, and the Court of Appeal said this:-

We do not think it permissible to put any gloss on the statute, or to read into it words which are not there. The change in circumstances since the placement order was made must, self-evidently and as a matter of statutory construction, relate to the grant of leave. It must equally be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings. In our judgment,however, the phrase “a change in circumstances” is not ambiguous, and resort to Hansard is both unnecessary and inappropriate.


Looking at the facts of the case, the father asserted four changes to his circumstances since the Placement Order was made


34. Miss Markham relies on the following changes of circumstances since the placement order was made on 17 January 2011:

i) He has formed a second (invalid and polygamous) marriage to SSB by whom he has had two children YSY and ISS who he is caring for as a secondary carer. YSY is no longer subject to a protective order and ISS never has been. Although he does not share a home with SSB his marriage to her is stable. No-one has ever suggested that domestic violence has featured in it.

ii) Contrary to the plan and expectation that SHT would be adopted this has not happened, because he has acute needs that have prevented him from being found new adoptive parents. He will stay with his current foster parents who either cannot or will not adopt him. Therefore adoption for SSM is a unique treatment which is not to afforded to any of his full siblings. The effect of adoption is to sever legal ties with all his siblings. They will no longer be his legal brothers and sisters.

iii) He has shown that, in contrast to the findings of Judge O’Dwyer, that he can work closely and co-operatively with professionals. He particularly relies on the report of the social worker Tony Stanley dated 2 February 2015 who had been assigned to the case concerning YSY. There have been no concerns regarding his conduct during contact sessions.

iv) He has successfully completed the first year of a two year NVQ childcare course


Mr Justice Mostyn felt, applying his ‘unexpected’ criteria, that changes 2, 3 and 4 didn’t count, but that ther first one did. The first one, that he was caring for children without State intervention is clearly the most important.


  1. I am not satisfied that the second, third or fourth grounds amount to qualifying changes of circumstances. In order to explain why it is necessary for me to set out certain key passages from the judgment of Judge O’Dwyer

    “14. I am satisfied that taking the above matters into account the welfare of the boys both emotional and physical requires that the boys should be placed for adoption. No lesser order will do or can be managed for the welfare of the children.

    51. The father has not been able to change. He has not recognised his problems. His own evidence adamantly affirms this. It is clear he is not able to work successfully with professionals to assist the children. Despite some protestations in his oral evidence that he would accept assistance from professionals and work with them, it was clear that this would only be on his own terms.

    52. It was clear from the Coral assessment that he is not able to accept and act on advice given to him without becoming angry and defensive. They concluded: “Based around our observations of contact, we gave advice and made suggestions to Mr A to support him to develop his parenting skills, but he was unable to accept these, however innocuous. We remain deeply concerned for the welfare of all the children during contact as our observations indicate that their father struggles to provide them with a safe and contained environment, even within a contact centre and with a supervisor present. He presented at times as very angry and controlling, and the behaviour of the children indicates that they are regulating their behaviour so as to optimise their interactions with their father, rather than that he is adapting and responding to their needs.”

    53. The Local Authority submit and I accept that Mr A lacks empathy and understanding of the children’s needs or an ability to react flexibly in order to provide for them both practically and emotionally. They refer to the Coral Assessment “Given Mr A’s presentation over the course of this assessment, the extent of his denial regarding the concerns in the judgement, and his tack of insight into, and attunement with, his children’s needs, it seems very unlikely that he would be able to provide ‘good enough’ caring for any of his children, even within the context of a robust ongoing professional presence within the family home.” In my judgment that is manifestly well founded.

    54. The Local Authority submit that the court can conclude upon all the evidence and taking into account the welfare checklist that care orders should he made in respect of all four children upon the final care plans proposed. The contact proposed between the parents and the children is appropriate (and approved by the children’s guardian). Placement orders are appropriate in respect to the boys. They are vital in order to pursue the long term placement proposals of the Local Authority. Applying Section 52(1) (b) Adoption and Children Act 2002 it is submitted that the children’s’ welfare requires that parental consent is dispensed with. I find it is imperative that it is dispensed with as the boys require the long term placement plan for adoption as proposed by the Local Authority and supported by the children’s Guardian. As will have been seen I accept these propositions.”

  2. I do not accept that because the plan for SHT has altered that this amounts to an unexpected change in the basic facts or expectations that underpinned the placement orders. By its nature a placement order does no more than to allow the adoption process to commence; it does not mandate that it must be concluded by an adoption order. It is known that sadly many children cannot be placed for adoption because of their needs.
  3. I do not accept that because the legal effect of adoption in a technical, as opposed to natural, way cuts the formal ties of brotherhood, that this in any way can amount to a qualifying change of circumstance. The plan accepted by Judge O’Dwyer would have had that effect anyway so far as SSM was concerned. That his brother SHT will retain the formal legal tie of brotherhood with his sisters is to my mind neither here nor there.
  4. I do not accept that because the father has worked better with professionals that this amounts to a qualifying change of circumstances. It is worth my noting that in my Court of Protection judgment at para 11 I recorded some disturbing aspects to the father’s conduct when he had contact with the mother. Mr Stanley however said this in his report:

    “I found Mr A increasingly able to manage his moods and behaviours at times of stress. I experienced him, on the whole, to be willing to work with me. Mr A explained to me that he felt powerless and voiceless in a system of social services and courts, where decisions affected him so gravely. Nevertheless, earlier reports of his aggression and anger toward professionals was not my experience. Mr A conducted himself in case conferences, core groups and other meetings in a calm manner. I directly challenged him on several occasions, as did Ms B (about the money he had promised) and he maintained his calm.”

  5. This is to be set against Judge O’Dwyer’s finding that “it is clear he is not able to work successfully with professionals to assist the children.” It is much to the father’s credit that he has been able to mend his ways in this regard. However, such an improvement is surely not unexpected. Even if it were it does not follow that this was a change in the basic facts and expectations that underpinned the order. Put another way, had Judge O’Dwyer known that four years on the father would have conducted himself with professionals in a calm manner it would not have altered his decision in any respect.
  6. The father’s NVQ course is not a relevant change of circumstances. This was not even mentioned in his witness statement.
  7. I do however find that the first ground does amount to a qualifying change of circumstances. The key finding in para 53 was that “it seems very unlikely that he would be able to provide ‘good enough’ caring for any of his children, even within the context of a robust ongoing professional presence within the family home”. Had Judge O’Dwyer been able to foresee that four years on he would be successfully co-parenting two very young children, he might (and I emphasise might) have reached a different decision about making a placement order although I have no doubt that he would have reached the same decision about making a final care order.


The leave to oppose Tsunami


As anticipated,  since Re B-S showed practitioners that the historically high (perhaps even insurmountable) test for leave to oppose adoption applications had been too high, and too heavily weighted in relation to the factor of potential disruption to the child in placement, the appeals have started to come in. I understand that Ryder LJ has already spoken of a “tsunami” of appeals which are heading towards the Court of Appeal.

Here are two :-

Re L (Leave to oppose making of adoption order) 2013

The Placement Order had been made in Feb 2012 and the child placed with adopters in March 2012 (so we are getting on for a year and a half in placement). As the Court of Appeal observe, an unusual feature of the case is that the adopters had separated in the course of that placement – somewhat peculiarly they were jointly pursuing the adoption application though had not decided between themselves who the child was to live with. Early on in the court proceedings the prospective adoptive mother dropped out, leaving Mr X as the prospective adoptive father to carry on with the adoption application as a sole carer.


The Court of Appeal considered that the trial judge had not properly weighed the ultimate prospects of M succeeding in her application given the backdrop of uncertainty and change in the prospective adopters situation.


    1. When a judge considers a parent’s prospects of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make, having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.


    1. The judge deciding the adoption application would need to approach the hearing bearing in mind what McFarlane LJ said in Re G (supra) about the dangers of a linear approach to decision making in child care cases. He would have to make “a global, holistic evaluation of each of the options available for the child’s future upbringing” (Re G §50) before determining what would serve the child’s welfare throughout his life. In the present case, the strengths and the weaknesses of M’s situation would have to be considered in isolation, as would the strengths and weaknesses of Mr X’s situation, and, as McFarlane LJ said in §54 of Re G, each option would have to be “compared, side by side, against the competing option”. This exercise would have to be carried out remembering that adoption is only to be imposed where that is necessary, as the Supreme Court underlined in Re B [2013] UKSC 33.


    1. An option that might appear not to be in a child’s interests in one context might, by this process of global, holistic evaluation, carry the day in another context. Here, M’s case that she would be able to care for S, or alternatively that there should at least be a further assessment of her ability to do so, would not fall for consideration, as is usually the case, alongside a settled and stable adoptive placement which had been going on for some time. The competing option would involve an adoptive household which has been subjected to protracted disruption and uncertainty which is yet to be completely resolved. First, there was the separation of the adopters, then the change from a joint adoption to an adoption by Mr X on his own, with Mrs X withdrawing from S’s life completely. Mr X’s new relationship and the anticipated baby changed things again and there still remains the outstanding dispute over where Y will live. Even once that is resolved, it will no doubt take some time for the X family as a whole to learn to live with the consequences of these extensive changes. That there is uncertainty in both options, not just in M’s situation, may turn out to be a very important feature in determining what will serve S’s welfare throughout his life.


    1. It seems to me that where the judge went wrong was in failing to consider whether the uncertainty in the adoptive household might improve M’s prospects of success and to make allowance for that. Putting it another way, what I think was missing was a consideration of M’s present position in the context of the disruption and uncertainty in the X household.


    1. Although he went as far as contemplating that the adoptive placement with Mr X would not ultimately succeed, the judge dealt with that possibility by making the assumption that, in those circumstances, S would be moved by the local authority to carers whose parenting abilities were at least good enough and probably better than good enough (§56) and that, although there may be delay whilst they were identified, S would be cared for meanwhile “either by approved foster carers or by potential adopters known to have adequate parenting skills” (§59). Even if not entirely apposite to the legal situation arising here, one question that might at least have generated the right sort of consideration is whether, in the event that Mr X’s adoption application were not ultimately to succeed, as the judge contemplated was possible, it may in fact be appropriate to pursue further the possibility of a placement with M rather than S being placed forthwith by the local authority with an alternative adoptive family as the judge assumed would happen.


  1. I do not think the judge can be criticised for being cautious about a return to M on the evidence as it stood. He said that it would be “experimental” and did not think it likely to succeed (§57). However, he appears to have been looking for quite a high degree of present certainty in this regard, speaking for instance of M being unable currently to “satisfy” the court of her abilities (§58). The degree to which a court needs to be confident about a parent’s abilities at the section 47(5) stage is likely to vary, in my view, depending on the other circumstances of the case and I say a little more about this in the final paragraph of this judgment. Where the other option under consideration also has significant uncertainties, a lesser degree of confidence may sometimes justify the granting of leave and it seems to me that that was so here. In such circumstances, it may also be that greater allowance might be appropriate for the fact that there has not been an opportunity for the evidence to be tested (both that in favour of M and that which may undermine her case).


NOTE that this case didn’t get sent back by the Court of Appeal for re-hearing (i.e the judgment needed work) but the Court of Appeal instead granted the leave, and the contested adoption hearing will therefore take place. (That’s a step farther than Re W – though that case clearly laid the foundations for the Court of Appeal making such a decision). The Court also emphasise that although the impact on the placement isn’t as heavy a consideration for the second stage (the welfare decision) as previously considered, the stability and duration of the placement could be weighed in the balance when determining the solidity of the mother’s application (an otherwise solid application could flounder on that particular dimension)

    1. Nothing that I have said in this judgment should be taken as any indication of a view of the ultimate strengths and weaknesses of Mr X’s application or (apart from the preliminary determination necessary for section 47) of M’s case. The evidence is not yet complete either in relation to Mr X’s circumstances or M’s, and none of it has yet been tested.


  1. I would like to add a final few words of more general application than just this case. I am very conscious of the difficulties inherent in applications under section 47(5). The relationships and hopes of not just one family but two are imperilled and the material upon which the decision has to be taken is, of necessity, often far from complete and not infrequently has not been tested in a hearing with oral evidence. I have not intended in this judgment to be prescriptive as to the way in which such applications are handled by the expert family judges who resolve them with skill and sensitivity. Each case depends upon its own facts and the circumstances of individual cases vary infinitely. Where, for instance, a child has been placed with adopters for a protracted period, is well settled, and remembers nothing else, a court may well take the view that there has to be a degree of confidence about the parent’s ability to provide a suitable home for the child before it can even contemplate assessing the parent’s prospects as solid. And the cases show that the overall circumstances of the case may be such that the court may decide not to grant leave even where there is some confidence in the parent. Re B-S was an example of a mother who had achieved “an astonishing change of circumstances” (Re B-S, §3) but did not get leave to oppose adoption because of the situation of the children (ibid, §102). Re C (A Child) [2013] EWCA Civ 431 was a case of a father who could have provided for the child’s physical needs but failed to get leave where the child (who was by then 4 ½ years old) had been settled with the adopters for over 2 years and had no relationship at all with him. At the other end of the spectrum, there will be cases in which the evident deficiencies in the parent’s case are such that, notwithstanding the existence of uncertainty or other issues in relation to the adoptive placement, the parent’s case is not solid enough to justify the grant of leave to oppose.


[It is interesting of course that two years of placement was considered this year, by the President no less in Re C, to be quite a clear cut-off point beyond which the Court would not possibly tamper with the placement, and six months later an 18 month old placement seems to count for very little : “ C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?“: )

The next one, the Court of Appeal dismissed the appeal – so one looks for clues and guidance within it

Re D (Leave to oppose making of an adoption order) 2013

The child had not lived with mother since May 2011, and Placement Order was made on 18th May 2012, placement with adopters Sept 2012  (note, six months LATER than in the appeal above that was granted)

The original court was satisfied that there had been a change of circumstances on mother’s part, thus satisfying the first limb of the two stage test, but decided that the circumstances did not justify reopening the case. Fairly naturally, in the light of the jurisprudence in the latter part of this year, the mother appealed.  In fact, she got silked-up (which suggests that public funding MIGHT have been obtained for her, would be interested to know that)

The appeal was effectively on the Re B-S, Re G and Re W grounds, that the Court had not properly weighed the mother’s prospects of success (which don’t have to be for return, they can be in persuading the Court to NOT make the adoption order), that the positive aspects of an alternative to adoption and the negative aspects of adoption had not been properly weighed.

    1. Although Judge Caddick in the present case did not use the word “solidity” in connection with his assessment of M’s prospects of successfully opposing the adoption, that was clearly what he was looking for, finding it lacking as we can see from his statement that it would be “highly improbable” that the court would say the position was sufficiently different to enable M successfully to oppose the adoption application.


    1. Was he wrong to assess M’s chances in this way and/or did he fail to demonstrate in his reasoning how he arrived at this conclusion, as Ms Connolly said?


    1. In answering this question, it is important to read the judgment as a whole. As the court observed in Re B-S (see §74(ii)), the question of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave are almost invariably intertwined and so they were here. The position that the judge reached, as he said expressly in §18, was that there had been a change in circumstances but that there were also features of the period following the making of the placement order which weighed against the progress that M had made, three in particular being identified in §§18 to 26 of the judgment. The judge’s concern about these was that the offence in June 2012 and the incident in February 2013 in particular indicated remaining immaturity on the part of M; in my judgment he was entitled to take that view, even allowing for the difficult circumstances in June 2012. HHe He rightly put these events into the context of M’s previous immaturity and, although he could perhaps have reasoned this stage in his decision making more fully, we can see, I think, from §38 that, quite independently of the question of how L would be affected by delay and/or the disruption of her placement, he concluded that the overall picture was such that M was unlikely to be able to establish that her position was different enough to persuade a court that it was in L’s interests to be placed with her. He had the particular advantage of having heard M’s oral evidence in which the events since the placement order were explored and it seems to me that he was entitled to arrive at this assessment, which deprived the M’s prospects of the necessary solidity.


    1. It was entirely appropriate that the judge should consider L’s circumstances and those of the adopters. Re B-S underlines that what is paramount in adoption decisions is the welfare of the child throughout his or her life and that it is important for judges not to attach undue weight to the short term consequences to the child of giving leave. It does not, however, say that even short term consequences for the child are completely irrelevant and they certainly are not. Similarly, Re B-S recognises that in some cases the adverse impact on the prospective adopters, and thus on the child, is something which may have considerable force (§74(ix)) although equally it is important that undue weight should not be given to the argument for the reasons set out in that paragraph.


    1. I do not accept the argument that the judge omitted to consider, or to give proper weight to, the benefits to L of being brought up by her own mother. That vitally important factor is recognised in §37 of the judgment, albeit in quite short form and without express reference to the provisions of section 1 of the Act. It was also stressed in the passage which, in directing himself on the law, the judge cited from Re P, which concludes with a statement that the paramount consideration of the court must be the child’s welfare throughout his or her life. As I see it, the core of the judge’s decision was that he just did not consider that the changes in M (for which he properly recognised she should be commended) were going to be sufficient to enable a court to conclude that she could bring up L at the present time.


  1. I have not been persuaded by the arguments so cogently advanced on M’s behalf that the judge erred in his approach to this case or failed to set out his reasoning for his decision sufficiently. I would accordingly dismiss the appeal.


As seems to be happening a lot in the latter part of this year, the decision then turns on the precise detail of the judgment, rather than principles which can be extracted. In Re B-S, the Court of Appeal felt that the judgment was robust enough, in Re W, they didn’t. In Re L they felt the judgment was wrong, in Re D, they didn’t.  {Comparing these two cases, in one the change was qualified by later blips  – Re D, the other wasn’t – Re L, and in one the placement was stable and secure – Re D, and in the other it was rather more uncertain Re L – so even without the judgments, one gets some sort of flavour of the task faced by mother}

I am beginning to wonder whether the publication, in anonymised form, of the original judgment ought to be considered with such appeals. Where the appeal turns on the quality and wording of the judgment, and Judges up and down the country need to know what “passes” and what “fails” it might be helpful to see them in full.



No wonder you’re late – why this watch is exactly two days slow

Yet more quest for perfection from the President. Mark this well.


Re W (A Child) 2013


There are two big principles in this Court of Appeal case, in which the President gives the lead judgment.  The first is about compliance with Court orders. The President is not happy.


    1. In his judgment in Re H, Judge Barclay drew attention to the fact that although he had made an order on 8 April 2013 requiring the local authority to file and serve on the parents short position statements regarding each child and any objections to leave to oppose being granted, not less than five working days before the hearing, no such position statement had been filed. Unsurprisingly the parents complained that they had no way of knowing what the local authority’s position was, save that there was a blanket objection to leave being granted. Ms Pitts went away to draft a position statement and the parents and their “experienced” representatives (Judge Barclay’s word) were then given time – three quarters of an hour or so – to consider what the local authority was saying. Ms Pitts tells us that further time was not sought. Judge Barclay, as he tells us in his judgment, considered that they had had “sufficient” time.


    1. That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne.


    1. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227, para 74.


    1. The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:


“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

    1. Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.


  1. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority. And it is also a particularly serious matter if the order goes to something as vitally important as Judge Barclay’s order did in this case: the right of a parent facing the permanent loss of their child to know what case is being mounted against them by a public authority.


Yes, you read that right – if the order says the document should be filed by 4pm, the party should APPLY FOR AN EXTENSION OF TIME before that deadline if it is going to be in at 4.21pm.

Does anyone’s experience of Courts suggest that such an application will be dealt with in time?


Anyway, next, and more important point.

This is the first case post Re B-S of an application for leave to oppose an adoption order. You will recall that in Re B-S, the Court of Appeal felt that the test had become too high, perhaps even insurmountable for parents and a recalibration was necessary.  On the facts of Re B-S, the Judge had got it right (or at least not got it wrong) and the refusal was upheld.  In this one, it wasn’t.

    1. The judgment must make clear that the judge has the two stage process in mind. There are two questions (Re B-S, para 73): Has there been a change in circumstances? If the answer to the first question is no, that is the end of the matter. If the answer is yes, then the second question is, should leave to oppose be given?


    1. In addressing the second question, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent’s prospects of success are more than just fanciful, whether they have solidity. If the answer to that question is no, that will be the end of the matter. It would not merely be a waste of time and resources to allow a contested application in such circumstances; it would also give false hope to the parents and cause undue anxiety and concern to the prospective adopted parents. The reader of the judgment must be able to see that the judge has grappled with this issue and must be able to understand, at least in essentials, what the judge’s view is and why the judge has come to his conclusion. The mere fact that the judge does not use the words “solid” or “solidity” will not, without more, mean that an appeal is likely to succeed, for example, if the judge uses language, whatever it may be, which shows that the parent fails to meet the test. So if a judge, as Parker J did in Re B-S, adopts McFarlane J’s words (see Re B-S, para 58) and describes the prospect of parental success as being “entirely improbable” that will suffice, as indeed it did in Re B-S itself, always assuming that the judge’s conclusion is adequately explained in the judgment.


    1. In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child) [2013] EWCA Civ 431.


    1. If the parent is able to demonstrate solid prospects of success, the focus of the second stage of the process narrows very significantly. The court must ask whether the welfare of the child will be so adversely affected by an opposed, in contrast to an unopposed, application that leave to oppose should be refused. This is unlikely to be the situation in most cases given that the court has, ex hypothesi, already concluded that the child’s welfare might ultimately best be served by refusing to make an order for adoption. To repeat what I said in Re B-S (para 74(iii)):


“Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do”.”

    1. It is surely a very strong thing to say to the child – and this, truth be told, is what is being said if the parent’s application for leave to oppose is dismissed at this final stage of the process – that, despite your parent having a solid prospect of preventing you being adopted, you (the child) are nonetheless to be denied that possibility because we think that it is in your interests to prevent your parent even being allowed to try and make good that case.


    1. I emphasise in this connection the important points I made in Re B-S (paras 74(viii), (ix)): that judges must be careful not to attach undue weight either to the short term consequences for the child if leave to oppose is given or to the argument that leave to oppose should be refused because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application.


  1. There is one final important matter that has to be borne in mind. The judge hearing a parent’s application under section 47(5) for leave to oppose is concerned only with the first and second of the three stages identified by Thorpe LJ in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para 18 (see Re B-S, paras 55-56). The third stage arises at the final adoption hearing and only if the parent has been given leave to oppose. As Thorpe LJ described it, the parent’s task at that stage is “to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings.” That issue is relevant at the prior stage, when the court is considering whether or not to give leave to oppose under section 47(5), only insofar as it illuminates the nature of the ultimate issue in relation to which the parent has to be able to demonstrate the solid prospects of success necessary to justify the giving of leave.


The Court of Appeal then grapple with two issues – on such an appeal, should they grant Leave to oppose themselves, or just send it back for re-hearing. And secondly, given the timing of leave to oppose applications and that adoption orders could easily be made before the appeal takes place, what should happen to the adoption order?

The first relates to the form of order. Having set aside the judge’s order refusing leave to oppose, should this court go on to give leave itself, or should that question be remitted for determination by the judge? If the proper outcome is clear on the papers, then it may be appropriate for this court to decide the issue. But if the matter is not clear then it must be remitted to the judge.

There is no doubt that the appellants have locus – status – to appeal against the adoption orders even though they were not parties to the proceedings at the time the orders were made: Re C, para 43. Recognising that the law sets a very high bar against any challenge to an adoption order if lawfully and properly made, the circumstances with which we are here faced demand as a necessary consequence of the appeals being allowed that the adoption orders be set aside. The point is short and simple. In each case the adoption order has been made on an application which, despite the protests of the parent, has proceeded unopposed and in circumstances where the necessary pre-requisite to that – the order dismissing the parent’s application for leave to oppose the making of the adoption order – has been invalidated by the subsequent order of this court. The consequence, to adopt the words used by Butler-Sloss LJ in Re K (Adoption and Wardship) [1997] 2 FLR 221, 228, is that there has been “no proper hearing of the adoption application” and, moreover, in circumstances where, if the adoption order stands, there will be “fundamental injustice” not merely to the parent but also, we emphasise, to the child. It is a necessary corollary of the appeal against the judge’s refusal to give leave to oppose the making of the adoption order being successful that the adoption order which followed must be set aside.


So  if a leave to oppose is refused and then appealed successfully, the adoption order itself must be set aside. That has major consequences for the timing of an adoption final hearing or order if there has been a leave to oppose application, and for adopters generally.  The making of the adoption order is not going to be the final say necessarily (they may have to wait not only for an appeal to be lodged, but for it to be determined, AND the prospects of a leave to oppose application are much harder to call, and it is probably more likely that many will be allowed, to avoid the nightmare scenario of an adoption order being made and later set aside.

This case is going to be very important for adopters, and the training and preparation they are given about the legal process, which is as a result likely to become more uncertain and stressful.  (There are of course, the advantages to parents and family life of such a decision, affording the parents opportunity to change after the care proceedings and to tackle their problems and put themselves in a position where they have an argument that ought to be heard)

“This is some serious B-S….”


The Court of Appeal decision in Re BS (Children) 2013  is out

This case involved an appeal against a decision to refuse leave for a parent to oppose an adoption application, a Placement Order having already been made. Prior to Re B, this would have been an appeal unlikely to have been given permission, let alone succeed. The law on the test for leave to oppose an adoption application is well-established, and is plainly a very high test for the parent to satisfy. (Some might possibly argue that the existing case law sets a test that is nigh on insurmountable)

The Court of Appeal however, set out the wider context of an appeal dealing with adoption post Re B, and the general mood music of the higher courts in recent days that not sufficient attention is being given to what a serious and grave order a Placement Order or adoption order is.


Adoption – the wider context

·  Lurking behind the present case, and indeed a number of other recent cases before appellate courts which we refer to below, one can sense serious concerns and misgivings about how courts are approaching cases of what for convenience we call ‘non-consensual’ as contrasted with ‘consensual adoption’; that is, cases where a placement order or adoption order is made without parental consent. Most frequently, parental consent is dispensed with in accordance with section 52(1)(b), on the footing that the welfare of the child requires the consent to be dispensed with. But we must not forget the not inconsiderable number of cases where parental consent is dispensed with because the parent lacks capacity.

·  We – all of us – share these concerns.


The Court of Appeal go on to set out the law as refreshed and refined by Re B, that adoption is the last resort and that it can only be the plan where “nothing else will do”

But this is new , though using Lady Hale’s judgment in Re B as a beginning:-


29 It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.


Hmmm. That seems sensible on the face of it, but of course a Local Authority could manage any risk at all whilst keeping the family together, if they kept the family together in a residential assessment centre permanently, or they had the family living at home with 18 hours a day visiting from professionals. So clearly there has to come a point in which resources play a part. It would not be reasonable for a Local Authority to spend millions on one family, probably not reasonable for them to spend half a million on one family, just to keep them together. The crunch therefore comes at where what a parent and Court consider to be reasonable allocation of resources to keep a family together clashes with what the Local Authority consider reasonable.

It seems not quite right to me to suggest that the LA cannot run such an argument – of course, the Court must have the ability to reject it and tell the Local Authority that their plan is refused, to make a less interventionist order and that the LA then have to make the best of it. But this formulation rather suggests that the Court can dictate the plan of support in the community.

I am struggling to fathom why a Local Authority should not press for adoption where they are unable or unwilling to support another form of order – surely that is the exact situation in which they would. The Local Authority can’t seek a Placement Order UNLESS they are satisfied that nothing else will do.  

In layman’s terms, what this really means is that if the Court is faced with a plan that allows the family to be together, the LA cannot oppose that plan on the basis that the resources required to make the plan work would be unreasonable.  That is a major development.

It seems to me that this would hold up for reasonable resource expenditure, but particularly in times of austerity, I suspect that Local Authorities won’t be quietly taking the “blank cheque” approach hinted at here. I also suspect that Barry comes into play in any later challenge.

Moving on, the Court of Appeal gave guidance about the evidential requirements for the Court to make a Placement Order and endorse a plan of adoption. It is fair to say that the Court of Appeal hint that Courts have become too lax, and too reliant on stock phrases and formulas

Adoption – essentials: (i) proper evidence

·  First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:

“evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.”

The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:

“An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options”.

McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:

“the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family”.

We agree with all of this.

·  Too often this essential material is lacking. As Black LJ said in Re V (Children) [2013] EWCA Civ 913, para 88:

“I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering … It is not the first time that I have remarked on an absence of such material from the evidence, see Plymouth CC v G (children) [2010] EWCA Civ 1271. Care should always be taken to address this question specifically in the evidence/ reports and that this was not done here will not have assisted the judge in his determination of the issue.”

In the Plymouth case she had said this (para 47):

“In some respects the reports of the guardian and the social worker, and the social worker’s statement, are very detailed, giving information about health and likes and dislikes, wishes and feelings. However there is surprisingly little detail about the central issue of the type of placement that will best meet the children’s needs … In part, this may be an unfortunate by-product of the entirely proper use, by both witnesses, of the checklist of factors and, in the case of the social worker’s placement report, of the required pro forma. However, the court requires not only a list of the factors that are relevant to the central decision but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children, and a fully reasoned recommendation.”

·  Black LJ has not altered the views that she expressed on these earlier occasions and the other members of the court agree with every word of them. We draw attention in particular to the need for “analysis of the pros and cons” and a “fully reasoned recommendation”. These are essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met. We suggest that such an analysis is likely to be facilitated by the use – which we encourage – of the kind of ‘balance sheet’ first recommended by Thorpe LJ, albeit in a very different context, in Re A (Male Sterilisation) [2000] 1 FLR 549, 560.

·  It is particularly disheartening that Black LJ’s words three years ago in the Plymouth case seem to have had so little effect.



The Court of Appeal go on to address specificially a type of formulation in social work or guardian evidence as to why adoption is required and reject it as being wholly insufficient. Raise your hand if you’ve never seen the case for adoption set out in this type of way


23 The allocated social worker in her written statement recommended that [S] needed:

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

24 With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

25 The independent social worker did not support adoption or removal but did describe the options which were before the court when the mediation opportunity was allowed:

“Special Guardianship Order: This is the application before the Court and which would afford [S] stability, in terms of remaining with the same primary carer and the opportunity to be raised within her birth family. I do not consider that the situation within the family is suitable at present for this Order to be made.

Adoption: [S] could be placed with a family where she should experience stability and security without conflict. This may be the best option for [S] if current concerns cannot be resolved in a timely manner.”

26 In order to choose between the options the judge needed evidence which was not provided. The judge’s conclusion was a choice of one option over another that was neither reasoned nor evidenced within the proceedings. That vitiated her evaluative judgment which was accordingly wrong.”

·  Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

·  This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

I don’t disagree with any of this – we do need to move away from simply dealing with the enormity of adoption by the stock phrase “It is a draconian order, however”  and actually dealing with the rigorous arguments for and against, for the particular children in question.  That is going to require substantially more detailed social work and Guardian statements (at exactly the time when the push is towards slimmer and shorter statements)

Next topic – not just the LA making their case better, but judges producing much better judgments.

Adoption – essentials: (ii) adequately reasoned judgments

·  The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

·  The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

·  In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

We need not quote the next paragraph in McFarlane LJ’s judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

·  We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

·  McFarlane LJ added this important observation (para 53) which we respectfully endorse:

“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.”

·  We make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance in what are amongst the most significant and difficult cases that family judges ever have to decide. Too often they are given scant attention or afforded little more than lip service. And they are important in setting the context against which we have to determine the specific question we have to decide in relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.

I again, don’t disagree with any of this. I do wonder whether in reality this means that Placement Orders can’t be determined by the Family Proceedings Court – whilst they could make the right decisions, that level of intensity and rigour and analysis in a judgment seems very arduous for a Bench.

At this point, the Court of Appeal clearly recognised that their direction of travel might be perceived as oppositional to the revised Public Law Outline, and are at pains to point out why it isn’t.  (Many people, myself included, considered the revised PLO to be largely about a rush to adoption)


Adoption – the current reforms to the family justice system

·  First, however, we need to see how all this fits in with the current reforms to the family justice system and, in particular, with the revised Public Law Outline.

·  Our emphasis on the need for proper analysis, argument, assessment and reasoning accords entirely with a central part of the reforms. In his ‘View from the President’s Chambers’ the President has repeatedly stressed the need for local authority evidence to be more focused than hitherto on assessment and analysis rather than on history and narrative, and likewise for expert reports to be more focused on analysis and opinion: see ‘The process of reform: the revised PLO and the local authority’, [2013] Fam Law 680, and ‘The process of reform: expert evidence’, [2103] Fam Law 816. What the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in play in the particular case, which analyses all the possible options, and which provides clear conclusions and recommendations adequately reasoned through and based on the evidence.

·  We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.


My quick view on this – we might finish cases in 26 weeks, but they will be coming back for another round after LA plans rejected and a trial at home hasn’t worked (I hope I am wrong)

With all of that in mind, it isn’t entirely surprising  that the Court of Appeal looked at the Warwickshire and Re P tests for leave to oppose adoption, and wrote a slightly  new one reinforcing a rather different emphasis

Section 47(5) of the 2002 Act – the proper approach

·  Subject only to one point which does not affect the substance, the law, in our judgment, was correctly set out by Wall LJ in Re P, though we fear it may on occasions have been applied too narrowly and indeed too harshly. The only qualification is that the exercise at the second stage is more appropriately described as one of judicial evaluation rather than as one involving mere discretion.

·  There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.

·  In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent’s ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child’s welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:

i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent’s care.

ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child’s welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.

v) This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.

vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.

viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.

x) We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: “the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”

I suspect one would see more successful leave to oppose applications. What that will mean for adoptive parents is yet to be seen – also what it means for the Legal Aid Agency who historically don’t fund these applications is yet to betested.

The Court of Appeal go on to set out that the test for the appellant court was whether the Judge was “wrong” rather than plainly wrong, but actually dismiss the appeal itself.



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