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Nothing else will do – In which Nails are placed in coffins, and heads of pins are danced upon

 

The third Court of Appeal decision in a month to backtrack from “nothing else will do” and this one does so very powerfully. (previous two Re MH and Re M, both blogged about last month)

 

To the point of saying that it is not a test.

 

In case you are pushed for time to read this, I’m afraid that you still have to write/read all the analysis of the various options, and the Court still have to consider those options and analyse them, but the Court of Appeal say that “nothing else will do” isn’t a test, but a process of deductive reasoning.

 

In case you are new to the whole adoption debate, then welcome, and in a nutshell there appears in the last year to have been a tension between the Government (pushing a pro adoption agenda, including telling social workers to stop thinking of adoption as a last resort) and the senior judiciary, who have been mindful of the principle that adoption is a last resort.

 

 

Even the President of the Family Division has acknowledged this tension

 

 

http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=18284:top-judge-recognises-tension-over-court-rulings-and-guidance-on-adoption&catid=54:childrens-services-articles

 

 

the Department for Education said: “The local authorities that are most successful in finding adoptive families for looked after children will generally be those with a very clear care planning process that always considers adoption as a possible permanence option and not an option of last resort.”

 

Asked about the issue by Local Government Lawyer at a press conference yesterday (29 April), Sir James responded: “Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the judges to decide what the statute means.

 

The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so.”

 

But the President added: “I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in Re B in the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year…..

 

“So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law.”

 

The Family President added: “In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.”

 

 

 

You might want to put a mental Post-it Note on the President (the lead author of Re B-S) saying THIS

 

The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view

 

Because the Court of Appeal (Ryder LJ lead judgment) are currently saying THIS

 

 

Turning then to the issue in this appeal. I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts.

 

 

Have fun reconciling those two things.

 

The case is CM v Blackburn with Darwin Council 2014 (lead judgment Ryder LJ)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1479.html

 

 

The point of the appeal was an issue that immediately came into most people’s minds following Re B-S – dual planning.

 

It is not (or was not) unusual, to see a care plan that said “we will search for an adoptive placement for the child for 6 months, and if that is not successful, then a foster placement will be found”

 

As a matter of law, based on the principle of “nothing else will do”, how could a Court say that fostering would not do in order to make the Placement Order, when the plan envisages fostering being a possible outcome? Either it is permissible to say “adoption is better than fostering for this child, but both would do”   or on a strict interpretation of “nothing else will do” the Court should reject the Placement Order as there is clearly something else that will do (fostering, explicitly provided for in the dual care plan as the fallback)

 

The Local Authority in such cases aren’t saying that fostering won’t meet the needs of the child, it is saying that adoption is a BETTER way of meeting those needs. (which for me is fine and common sense – they have to make the case, but a Court should have that discretion)

 

Is that compatible with “nothing else will do” ?

 

Well, given cases in October (and cough, the adoption figures and political uproar), it is not surprising that the Court of Appeal say “yes, dual planning is compatible with the law”

 

 

 

Here’s what they have to say about “nothing else will do”   (and it is not only a major shift, but it probably makes large parts of the Myth-Busting document now accurate, or at least more accurate than it was before this judgment was published – so it was a fortune-telling document as well as a Myth-Busting one)

 

 

Turning then to the issue in this appeal. I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts. The test remains untouched but the court’s approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision. That can be seen in graphic form in the comments of the President in Re B-S at [30]

 

“we have real concerns about the recurrent inadequacy of the analysis of reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new, but it is time to call a halt.”

 

 

 

Yes, you have read that right – the Court of Appeal are now calling nothing else will do an unnecessary gloss on the statutory test. A gloss that a year ago they were embracing and thrusting on us all. We are rewriting history here – in the words of Kevin Costner “We’re through the looking glass here, people”.

 

 

Someone else might hear make a cruel remark about irony and unfortunate glosses to statute, but that would be beneath me.

 

 

The Court of Appeal goes on

 

Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption. What the decisions do is to explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same.

 

 

(That will delight the Government and Mr Narey – as this is their line. But go on, please)

 

 

A court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the ‘welfare checklist’). That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child’s welfare throughout her life: that is the court’s welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long term placement options. That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court’s welfare analysis which leads to its value judgment. In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child. That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence.

 

 

[You may be seeing here that there is no mention of the least interventionist order, last resort, draconian nature of the order – that’s all bound up here in proportionality. But it is fairly pivotal and important that it was the specific issue of whether adoption was a proportionate answer and the circumstances in which it might be that led to the ECHR decision in Y v UK which was at the heart of Re B and Re B-S. It is a strange omission, and one which is also conspicuous by its absence in the Myth-Busting document]

 

That is what ‘nothing else will do’ means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.

 

 

“nothing else will do” is not a test – that noise you may hear as you read this is your eyes rolling. It is just a description of the process of deductive reasoning. Therefore, if the Judge has carried out the balancing exercise and answers the question “Am I satisfied that nothing else but adoption will do?” with a “No”, can he or she make the Placement Order? If it is not a test, but just a description of a process, then possibly.

 

I mean, this is just flat out strange – the Supreme Court made themselves rather plain, I thought. But now we are told that this is not in fact a test, and we should just read the word as ‘requires’

 

I’ll deviate for a moment

 

Supreme Court, Re B June 2013. http://www.familylawweek.co.uk/site.aspx?i=ed114409

 

We are all familiar with Lady Hale’s key paragraphs, but I’ll set them out, because they seem to be vanishing before our eyes. Note that on the issue of “nothing else will do” she says that all of the Supreme Court Judges agree on that. And she is right. Although she gave a minority judgment in the case overall (i.e whether the Judge had got the individual case right or wrong), on this aspect, these paragraphs reflect the decision of the Supreme Court.

 

  1. Perhaps above all, however, this case raises the issue of when it is proper for an appellate court to interfere in the decisions of the trial judge who has heard and read all the evidence and reached his conclusions after careful cogitation following many days of hearing in court and face-to-face contact with the people involved. We all agree that an appellate court can interfere if satisfied that the judge was wrong. We also all agree that a court can only separate a child from her parents if satisfied that it is necessary to do so, that “nothing else will do”.

 

 

  1. Nevertheless, it is quite clear that 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.

 

  1. But that is not the end of the story. 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.

 

 

 

Let’s now look at the words of the President in Re B-S on this issue

 

  1. Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child “requires” this. “Require” here has the Strasbourg meaning of necessary, “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”: Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120, 125. This is a stringent and demanding test.

 

  1. Just how stringent and demanding has been spelt out very recently by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. The significance of Re B was rightly emphasised in two judgments of this court handed down on 30 July 2013: Re P (A Child) [2013] EWCA Civ 963, para 102 (Black LJ), and Re G (A Child) [2013] EWCA Civ 965, paras 29-31 (McFarlane LJ). As Black LJ put it in Re P, Re B is a forceful reminder of just what is required.

 

  1. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child's] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

 

 

 

And

 

  1. It is time to draw the threads together and to spell out what good practice, the 2002 Act and the Convention all demand.

 

 

 

All of these “striking” words, we are now told, were not intended to amount to any change in the legal test or a gloss on the statute. Anybody interpreting the word ‘require’ in the wording of the statute as now incorporating those principles is just wrong, or that a Judge is expected to answer a question about whether “nothing else will do but adoption” is wrong.

.

 

52 (1)The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that— .

(a)the parent or guardian cannot be found or is incapable of giving consent, or .

(b)the welfare of the child requires the consent to be dispensed with.

 

Re B-S is thus, presumably, case management guidance rather than law. One wonders, if that’s the case, why it wasn’t all set out in a Practice Direction rather than a judgment, given that the primary author of Re B-S had the power to do that. [I don’t believe for a second that Re B-S wasn’t intended as an authority that Judges who failed to properly engage with proportionality and necessity and the Re B principles would be at risk of appeal]

 

 

I will give a caveat to all of this – I’m sure that there were very good Judges up and down the country who were grappling with these issues in their judgments before Re B, and were properly considering the pros and cons of adoption and were not doing as criticised in Re G by a linear process of “if I’ve ruled out mum, dad and grandparents, what is left is adoption, so adoption IS the last resort”. For those very good Judges, Re B and Re B-S didn’t really change the way they were doing those judgments and making their decisions. But it was very plain from the volume of successful appeals that there were Judges who weren’t.

 

(And I don’t think that those were bad judges or flawed judges – it was rather that it had become general practice to use that linear model and it was only once McFarlane LJ highlighted the inherent flaws in it in Re G that some shifted.   From the published judgments that I have read on Bailii in the last year, a surprising number of placement order judgments still fail to do that and simply replace analysis by quoting large chunks of the caselaw and saying “I have considered this” thus failing to see the point that the Court of Appeal appear to have been making in their condemnation of stock phrases and judicial window-dressing)

 

Were Re B and Re B-S new law, a fresh interpretation of the word ‘requires’ in the statute, or a gloss? Or were they as is being suggested now, a reinforcement and reminder of the existing law containing nothing fresh other than case-management guidance? We could dance on the head of a pin forever on that one.

 

If it was nothing fresh, it is surprising that so many successful appeals were happening last autumn and winter …

 

 

 

Back to the Court of Appeal in this particular case.

 

 

The words of Lord Nicholls in In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [20012] 1 WLR 258 cited with approval in the Supreme Court in Re B remain apposite:

 

“[16] … There is no objectively certain answer on which two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.”

This court has on two recent occasions highlighted the way in which the proportionality evaluation is being misconstrued by practitioners. In each case practitioners were reminded to use the concept that was described by the Supreme Court in Re B. In M-H (A Child) [2014] EWCA Civ 1396 Macur LJ at [8] said:

 

“…I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of “nothing else will do”. That is, the orders are to be made “only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child’s best interests.” (See In Re B, paragraph 215)….”

In Re M (A Child) (Long Term Foster Care) [2014] EWCA Civ 1406 Black LJ said:

 

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

 

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

 

I emphasise the last phrase of that passage (“in her interests”) because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child’s interests.”

With respect, I agree.

 

It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit. The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available. The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it.

 

My answers to the questions posed by Mr Rowley are as follows:

 

  1. a) The judge’s methodology was right. She conducted a fact finding exercise, a welfare analysis of each realistic option, a comparative welfare evaluation and a proportionality evaluation.
  2. b) The statutory tests are not re-drawn. ‘Nothing else will do’ is the conclusion of a proportionality evaluation after a process of deductive reasoning not a new presumption and not a standard of proof.
  3. c) It is not necessary to have a contingency in a care plan although it is desirable. A timetable within which a local authority have to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.
  4. d) Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.
  5. e) There is no objection in principle to dual planning in an appropriate case. This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy. It was not a decision that one of two options would do.

 

 

 

I think the CoA go further here than in the last two cases – in those, there was still a concept that “nothing else will do” being a test, albeit a more nuanced test in which the words meant “nothing else that will properly meet the needs of the child”

 

Here, they say explicitly

 

The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available

 

That’s not saying that the Court rejected the other options, or ruled them out, or concluded that they were not capable of meeting the child’s needs. That is outright saying that even with a reasonable and available option, adoption can still be the choice of the Court.

 

Although in saying

 

Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.

 

And

 

It was not a decision that one of two options would do.

 

 

Are they in fact saying that there WASN’T a judicial acceptance that long-term fostering was capable of meeting the child’s needs and that the Court was just approving the plan of adoption by rejecting all of the other options and that long-term fostering was not a plan, but a contingency in the care plan that the Court wasn’t required to consider?

 

That’s one way of reading the Court of Appeal’s answers to those questions which still IS compatible with the nuanced / glossed “nothing else will do”   (there is no other option that is capable of meeting this child’s needs in a satisfactory way). I wouldn’t have much quarrel if the case had been decided in that narrow way – it seems to me that you could resolve it by deciding that adoption was the plan, making a Placement Order and advising the LA that a revocation application should be lodged if the plan is formally to be changed.

 

Let us be honest, in a care plan of “search for adoption for 6 months, if unsuccessful long-term foster care”, which of those two things is the ‘last resort’?   It isn’t adoption, that’s the first preference. Long-term fostering there is the last resort. When the Court makes a Placement Order in those circumstances, it really isn’t saying that adoption is the last resort; it is saying that adoption is a better way of meeting the child’s needs than the other available alternative. [Which arguably just falls under s1 of the Children Act and is a good thing, but in that case, the talk of ‘last resort’ is a sham]

 

 

 

Why, one might almost think, if one was very cynical, that the fact that Re B looked like it was heading for the ECHR led the Court of Appeal to take pre-emptive action to bolster adoption before any ECHR decision “look, we’re being proportionate!”   and now that we know Re B isn’t going to the ECHR and the practical import is being seen, there’s a backtrack.

 

I mean, I myself am not that sort of cynical person, so that of course isn’t what’s happened.

 

What has happened is that we naughty, dastardly lawyers have deliberately confused the Supreme Court and Court of Appeal saying that for the wording of the statute, “requires” means literally nothing else will do, and taken that to be a test to be followed, whereas all they meant was the quality of evidence needed for a Judge to be satisfied that the child’s welfare ‘requires’ that parental consent be dispensed with is higher.

 

And all of those successful appeals based on that point were… I’m afraid that my imagination is breaking down there and I can’t find a plausible explanation why those appeals were allowed if the position really is and always was what the Court of Appeal now say.

 

Why weren’t they rejecting all those appeals and saying “no, people have got this wrong, nothing else will do doesn’t mean that at all?”

 

If we can be honest again for a moment, imagine that a Judge in a Placement Order case in September 2013, or even September 2014 had said “I have been referred to the cases of Re B and Re B-S, but I don’t need to follow those and I am sticking to the law exactly as it was in 2012”   would the Court of Appeal have backed that

Why is there something instead of nothing?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

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

 

 

 

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

 

 

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

 

 

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

 

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

 

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

 

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

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

 

 

 

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

 

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

 

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

 

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

 

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

Nothing else will do – Court of Appeal clarification

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

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

 

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

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

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

 

 

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

 

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

 

Re M-H (A child) 2014

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Nothing else will do? A head-scratcher

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

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

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

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

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

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

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

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

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

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

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

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

25. The guardian says this at paragraph 62:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

 

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

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

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

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

 

 

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

 

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

 

No, I am NOT the Red Viper of Dorne

No, I am NOT the Red Viper of Dorne

Successful appeal against placement order

 

The Court of Appeal’s decision in Re R (A child) 2014 and why an appeal is now even worse news for a Local Authority

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/597.html

 

It has been a little while since we had one of these “non B-S compliant” appeals, but just to let you all know that they haven’t gone away.

 

This was an appeal about four children, who were all made subject to Care Orders in August 2013, and the youngest two were made subject to Placement Orders.

 

The mother appealed, and when the case got to the Court of Appeal, the Court of Appeal were very troubled that from the original judgment, it simply wasn’t possible to tell whether the Court had really looked at the other options available, the positive benefits of those other options and whether adoption really had been the last resort.

 

The fundamental concern in the case had been the risk posed by the father. The Court of Appeal quoted what Lewinson LJ had said when granting the permission to appeal

 

“The risk …. that the judge found was clearly tied to Mr J and his inappropriate sexual behaviour. The material submitted by the local authority, which I have read and which is confirmed by the mother’s grounds of appeal, shows that the mother and Mr J are now divorced, no longer living together and the mother has no intention of resuming any relationship with Mr J. In those circumstances, I have a considerable concern that the judge did not make any clear findings about whether the risk which he identified continued to exist after the disappearance of Mr J from the life of the mother and her children. I have a concern also that the judge did not expressly deal with less draconian outcomes than the orders which she eventually made.”

 

And the final conclusions that the Court of Appeal reached were not markedly different to that.

 

On risk

 

21 The central issue in this case, as the judge saw it, was the sexual risk posed by Mr J. That risk was based upon the 2006 conviction although the judge referred to the allegations made by S as particularly troubling too. Plainly, she was entitled to take into account the existence of those allegations and M’s response to them but given that she had not made a finding that the disputed events in relation to S had taken place, she was not entitled to proceed on the basis that Mr J was a risk because he had sexually abused S. This is appropriately reflected in her formulation of the risks.

22 Two points immediately stand out in relation to the sexual risk posed by Mr J.

23 First, Mr J is only a risk to these children if he remains on the scene or is going to return to it. M’s case is that she separated from him within weeks after the events of August 2012 and has since divorced him. LA say that there is no direct evidence that she has continued to associate with him but they remain suspicious on grounds which they explained. However, the important point for the present judgment is that no finding was made by the judge about whether M was still associating with Mr J or would be likely to do so in future. Without a finding that he was likely to feature in her life or the children’s in some way, it is difficult to see how he could be said to pose a risk to these children. If he did not pose a risk, then it was academic whether M would be able to protect the children against him and no finding was made that she would be likely to take up with another man who would pose a similar risk.

24 Second, even if the evidence were to establish that Mr J may be part of the picture in future, any evaluation of M’s attitude to the risk he poses would have to take into account LA’s own attitude to that risk in May 2012. The risk flows principally from Mr J’s 2006 conviction and, knowing about that, LA permitted Mr J to live in the family home with the children from May 2012 onwards, without even supervisory oversight by LA who had closed the case. A rather sophisticated analysis of the situation would be required in order to accommodate this feature. The analysis may be further complicated by the need to take into account also M’s attitude to the August 2012 allegations that S made. Although it was not proved that things had happened as S said, there was no question but that she made serious allegations and LA would say, no doubt, that M’s failure to keep an open mind about them shows that she lacks the capacity to behave protectively. However, whether M’s attitude to the allegations counted for anything in the analysis of her ability to protect the children from risk in future would depend upon what facts were available to her about the situation in relation to S, either from her own knowledge or from elsewhere. Particularly careful evaluation of this feature of the case would therefore be required. The fact is that the judgment does not deal with these factors at all, neither referring to the older history of the case leading to it being closed in May 2012, nor dealing with the complex situation in relation to the August 2012 allegations.

25 This is a deficiency in the judgment which undermines the judge’s welfare decision fatally in my view.

26 Without a sufficient evaluation of the risk flowing from Mr J’s sexual activities, all that was left as a foundation for the judge’s view that M could not provide the children with emotional care and was unable to protect them was what she set out in §38.3 (supra). It would be difficult to argue that that alone was enough to justify the orders that she made.

 

On a failure to properly explore the other options

 

 

27 Lewison LJ questioned whether the judge had dealt sufficiently with the less draconian outcomes that might have been possible for these children. We explored this question further during the hearing and I concluded that the judgment did not, in fact, deal sufficiently with this.

28 Exactly what might be possible for the children will depend upon the precise nature of the risk that is found to exist – what is at risk of happening, how likely it is to happen and what the consequences would be for the children if it did happen. However, there is an obvious need at least to consider, in every case, whether the children could be protected whilst living at home by LA maintaining a supervisory role through the medium of a supervision order or even a care order. I note that M’s case was that the children would live with her and her parents (judgment §17). The judgment reports that the social worker did not see this as a viable arrangement for the children but there is no explanation as to why not. The social worker gave evidence about the difficulties of communicating effectively with the children and gaining an understanding of what was happening in their home (judgment §15) and also about the near impossibility of establishing a working relationship with M (§18). That may weigh heavily against a placement at home under supervision but whether or not it did would depend upon the nature of the risks against which the children needed to be protected, as to which I have already expressed my views above.

29 Part of the overall welfare evaluation needed to be a thorough examination of the implications for the children of being removed from home permanently, split up from their siblings (the plan being for them to be placed in two pairs) and, in the case of the youngest two, removed from their family permanently. These were not infants by any means. The evidence was that they were very loyal to M. The judge recorded that the oldest two were expressing a desire to go home. There was evidence that the youngest two, whose primary carer had consistently been M, seemed to have largely secure attachments and were resilient children, engaging and sociable and not giving rise to any concern in relation to their behaviour or social presentation (see the report of the clinical psychologist who assessed the children).

30 The judge précised some of the evidence of the clinical psychologist in her judgment. She reported, for example, that the psychologist said it was difficult to balance the sibling relationship against the individual needs of the children for stability and permanence in a placement (judgment §20) but this was in the context of a consideration of what should be done about the children’s placements away from home i.e. whether they should all be placed together or split so as to give the younger children the chance of being adopted. That was predominantly the focus of the rest of the evidence précised by the judge as well, from the social worker and the guardian.

31 As Re G [2013] EWCA Civ 965 has made clear, the decision whether an order should be made which will result in the children not going home has to be taken following a global, holistic consideration of all the factors in the case and each of the options available for the children. The judgment in Re G was, of course, only handed down on 30 July 2013, which was during the hearing of evidence in this case. It is well understood that its implications would not have been digested by the time that submissions were made and judgment given. Indeed, it is only fair to observe that 2013 was a year of upheaval for family law and I have no doubt at all that keeping abreast of developments must have been very difficult indeed for practitioners and judges alike.

32 For whatever reason, however, even taking the judgment as a whole and concentrating on substance rather than form, it cannot be said that the judge carried out “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” (see §54 of Re G). What was required was not only a comparison of adoption vs fostering and splitting the children vs not splitting them. The judgment needed also to deal with the possibility of returning them to their home, taking account of losses that the children would suffer if this were not to happen. Those losses needed, in turn, to be taken into account in considering the case for adoption/long term care. It may well be that the judge considered that she had covered the possibility of a return home in her précis of the evidence of the social worker and the guardian, whose evidence she found impressive and who considered that it would not be feasible because it would not be possible to work with M or the children. However, more was needed in my view, and I am confident that the judge would have dealt with these issues more fully had she had the benefit of all the observations that emerged from this court and the Supreme Court during the course of 2013.

 

 

The Court of Appeal therefore discharged the final orders and sent the case back for re-hearing.

 

 

They also raise a practice point, one which will make the average Local Authority lawyer’s hair stand on end like quills upon the fretful porpentine. They point out that as the appeal was brought by a litigant in person, the procedural formalities (making sure everyone was served, setting out clearly the issues, having all of the relevant documents in the bundle) weren’t complied with. They then say “there’s no resources for the Court to do all of this”

 

And of course they then say “So, Local Authorities, with their bottomless resources and pockets, will have to sort it out”   (bear in mind that the LA are opposing these appeals, not bringing them)

 

6 This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

7 The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

8 It is important also that the respondents to the appeal make themselves aware of the issues that will be aired at the hearing. If permission is given in writing there will be an order which sets out shortly what the Lord Justice decided and why. If permission is given at an oral hearing, a short judgment will almost invariably be given explaining why and a transcribed copy of this should be sought.

9 I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014. Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult

 

 

In effect, if an appeal is brought by a litigant in person, the Local Authority should undertake all of their requirements as a Respondent, but also now do everything that the Court would normally expect an Applicant to do.

 

(And of course, remembering that whilst there’s no chance of the LA recovering THEIR costs if the appeal is hopeless or lost by a country mile, there’s authority to say that if the appeal succeeds costs orders can be made against the LA.  )

A word in your shell-like

Appeals, adoption, writing a cheque for costs and ‘informal discussions’

 Re C (A Child) 2014

 http://www.bailii.org/ew/cases/EWCA/Civ/2014/70.html

 It is no longer any great surprise when the Court of Appeal overturn a Placement Order, but just when I was getting jaded with this new spirit, along comes something to raise an eyebrow. In this one, the Court of Appeal overturned the Placement Order AND made an order for costs, in the sum of £22,000 against the LA.

 It also raises a couple of important issues of principle.

 The first is the need for a Judge to take care on an appeal – in this case, the whole thing started with a DJ refusing a placement order and the Local Authority appealing it to Keehan J.

 Keehan J found all five grounds of their appeal met, granted the appeal (fine) but then went on to make the Placement Order.

 As the Court of Appeal pointed out, Keehan J therefore made a Placement Order whilst only seeing the documents in the appeal bundle (which were of course very limited) and had not seen all of the documents that would be necessary to properly consider whether or not a Placement Order was the right order.

 It is quite obvious that Keehan J was concerned at the delay in planning for S’s future care needs, which delay is statutorily recognised as inimical to the welfare of the child (Children Act 1989, s 1(2)). Unfortunately, his understandable desire to move the matter forward appears to have blinded him to the significantly defective appeal bundle created and provided by the appellant which actually rendered him incapable of proceeding with the hearing on the notice of appeal filed, let alone providing the necessary evidence to support the making of a placement order. Put shortly, there were no transcripts of evidence and some of the documents before the district judge had been removed from the bundle….

 

There was an obvious lacuna in the materials presented to Keehan J in his appellate capacity to dispose of the appeal, still less to subrogate his own assessment of the facts in making a placement order. (See paragraph 8 above). I know that he would now only too readily acknowledge that his expressed reasoning in deciding that it was right to do so is insufficient and does not comply with the subsequently reported Re B-S (CHILDREN) 2013, EWCA Civ 1146.

 

 The Court of Appeal raise an interesting point, which may well come back to bite them, about transcripts of evidence rather than just the judgment. I happen to agree with them, but it is still something of a hostage to fortune.

Keehan J’s judgment was that the district judge “misconstrue[d] the evidence of Dr Bourne”, “was wrong to conclude that [an option] was viable or available…because the social worker gave evidence to him…”; reached “a conclusion which…he was [not] entitled to reach on the totality of the evidence before him”; and, that in relation to the care plan “was plainly wrong to come to that judgment and assessment”. He concluded that “The care plan of the local authority was entirely clear”. In my judgment, these findings and conclusions simply cannot subsist in the absence of a critical appraisal of all the evidence that was before the district judge (rather than relying on such statements as he had and the summary within the district judge’s judgment. Oral evidence will necessarily colour the picture otherwise presented by the statements and reports prepared before hearing. As is obvious from the judgments of District Judge Simmonds, that is precisely what happened in this case.

 

 

  1. In challenging Counsel for the Respondent local authority as to the absence of any transcript of evidence before Keehan J when hearing the appeal, her response clearly reflected the position taken by the local authority in the first appeal. That is, that transcripts were unnecessary since the district judge had specifically summarised the oral evidence as was obviously relevant to the judgment.
  1. This submission reflects an inability to recognise the failures of the local authority in the first appeal process which I would otherwise have hoped may have occurred to its legal advisers after reflection upon the contents of the present appellant’s notice and recourse to notes of evidence. It also flies in the face of paragraph 9 of District Judge Simmonds’ first judgment, vis:

“The fact that I do not mention something in this judgment does not mean that I have not fully considered it, but it is impossible to set out in this judgment everything that I have heard and read. My analysis of the evidence and findings, although made after each witness, are on the basis of hearing and reading the entire evidence and analysing the evidence in its totality.”

  1. This observation is entirely consistent with the well established principle derived from the speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at p 1372:

“The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1 , 45:

The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

  1. Over time, inevitably and regrettably, this conspicuously articulated wisdom is diminished by familiarity and may often, as in Keehan J’s judgment, become eroded by a concisely expressed but imprecise phrase. Lord Wilson’s judgment, endorsed in this respect by Lord Neuberger in RE B (A CHILD) (CARE PROCEEDINGS:THRESHOLD CRITERIA) above is a potent reminder of the need for all appellate courts to do more than pay lip service to the doctrine. At paragraph 42, after quoting Lord Hoffmann in Piglowska he said:

“Lord Hoffmann’s remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just “is this true?” or “is this sincere?” but “what does this evidence tell me about any future parenting of the child by this witness?” and, in a public law case, when always hoping to be able to answer his question negatively, to ask “are the local authority’s concerns about the future parenting of the child by this witness justified?” The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge’s decision about the future arrangements for a child. In In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258 , Lord Nicholls said:

“16 …There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.……Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge’s decision.”

 

 

Is that authority for “in an appeal, a transcript of the entireity of the evidence should be obtained?”    – well, not quite, but I would certainly say that attention should be paid as to whether it should be obtained, and advocates be prepared to defend their decision about it either way. (Frankly, I would cover my back and include within the appeal notice a position as to whether the oral evidence given is intrinsic to the appeal and the Court is invited to direct whether a transcript be obtained)

 

A major issue in the case was whether in the original hearing, the oral evidence developed to a point where an alternative to adoption (namely the child continuing to be fostered by the existing foster carers) emerged as a credible alternate plan. That plan was the one that the District Judge approved – hence him making a Care Order but no Placement Order. At the appeal before Keehan J (who of course saw the written evidence and submissions that this was not an option on the table) what appeared to be the case was that the DJ had refused the LA plan and tried to foist upon them a plan that did not in truth exist as an option, which would of course have been wrong in law.  The Court of Appeal, having seen the transcripts of the oral evidence, felt that the option that the DJ selected was in fact an option open to him based on the evidence, and that thus not only was Keehan J wrong in granting the appeal but the LA had been wrong in issuing it.

An interesting aspect of the case was the Court of Appeal’s take on the ‘informal discussions’ that took place between counsel for the LA and the original District Judge. There is obviously a fine line between the duty to raise points of clarifications before an appeal and back-door pressure, and the Court of Appeal felt that this was wrong side of the line territory.

  1. Counsel for the local authority e-mailed the district judge timed at 3.33 am on 25 February seeking to “clear misunderstandings” as to the thrust of her closing submissions which had apparently not been accepted. The district judge responded at 9.07 in short order restating the pertinent bases of the decision reached and indicating that the order would follow. Remarkably, and with great temerity in my view, Counsel then responded “with the greatest of respect, I do not agree with your analysis”. Having re-iterated shortly the basis of his decision the district judge quite properly made clear that he was “not prepared and [would] not deal with this matter in e-mail correspondence.”
  1. Whilst other advocates were copied into the second e-mail and the first e-mails disclosed to them subsequently, apparently have made no complaint and may well regard it to be orthodox procedure, I regard this to be an entirely inappropriate, unacceptable and unsatisfactory practice. Not only was this an unwarranted ex parte approach by unconventional medium but it is a practice that lends itself to accusations of taint, bias, closed door justice and “stitch up” in the absence of an adequate and reliable method of recording what transpired. In the circumstances, the district judge was extraordinarily restrained in his responses.

And

I agree with the reasons given by Macur LJ for allowing this appeal and I agree with the order proposed. I would particularly like to associate myself with the remarks that Macur LJ has made at paragraphs 11 and 16 of her judgment. The attempt to get the District Judge to change his judgment and order after the he had delivered his judgment was quite unjustified and inappropriate. Counsel should know better than to attempt such an inappropriate exercise, even if the client urges it. (I do not say that happened in this case; I do not know).

 

 

And

  1. I agree with both judgments. Having seen the judgments in draft, Ms van der Leij has expressed concern about the comments at paragraphs 10-11 of Macur LJ and paragraph 36 of Aikens LJ dealing with the e-mail exchanges subsequent to the hearing. She observes that “it is by no means unusual for practitioners in the Principal Registry to e mail district judges directly seeking clarification of matters raised in a hearing”. It is one thing, if invited, to make submissions in relation to the terms of an order provided that every communication is copied to every party; it is another to express dissent and seek to engage in further argument. If that is not unusual, it is important that the problems which it generates should be recognised and that the practice should cease. First, it suggests (even if it is not the case) that advocates can go behind the scenes to resolve issues in favour of their clients and, as Macur LJ observes, will give rise to allegations of ‘stitch up’. Secondly, it will encourage litigants in person (who do not have the same understanding of the law or practice) to adopt a similar approach thereby disrupting the finality of the judgment of the court and generating continued uncertainty.

I completely agree with all of this – it is hard to know what was going on here, but the best way to deal with this sort of thing is transparently, where everyone (including and particularly the parents) sees exactly what is being said to the Judge and has an opportunity to comment.

 On to costs.

The Court of Appeal point out, with a degree of acidity, that if the parents had been legally represented at the first appeal, to the circuit judge, it would have emerged that the oral evidence had been markedly different to the papers that Keehan J had seen and that the DJ had been within his rights to view that oral evidence as being that an alternative plan than adoption – namely long term fostering with the existing foster carers, was not only an option that he could chose, but one that he should.

They point out that in saving a very small amount of costs in legal aid for that hearing, substantially greater costs, and delay for the child have been incurred because that appeal itself had to be appealed.

The fact that the parents were faced with an appeal before Keehan J without any professional representation because their legal aid had been withdrawn must have been a factor which unfortunately led the judge to be persuaded to act as he did, despite the fundamental procedural failure of the respondents’ lawyers. This was, of course, their failure to produce on appeal the transcripts of the very oral evidence which the appellant alleged that the first instance judge had misconstrued/misunderstood. As Macur LJ has commented, if the parents had been represented by competent counsel this failure would doubtless have been pointed out and the appeal may never have seen the light of day. As it is, further public expense has been incurred because of the need for a further appeal to this court. What might have been saved in legal aid fund costs has been lost by incurring public expense on another (but related) part of the public purse.

They did refute the parents claim that because they had not been represented at the original appeal their article 6 rights had been breached – i.e this would not be a ground for appeal in and of itself, although it provided context as to why the original appeal had gone awry and needed to be appealed

 

 The fact that parents comprise the vastly increased number of litigants in person which appear before the courts in child public law cases since they do not qualify for non means tested legal aid is all too apparent and unavoidable as a consequence of the present regime. As here, non represented parents will often be ranged against legally qualified advocates opposing them. They have access to justice in accordance with their “Article 6 rights” but are often daunted by the process and feel understandably outgunned. In itself, this fact does not found a meritorious ground of appeal but necessarily it comprises a context for the other complaints that are raised in this application. I have every reason to expect that, if they had been legally represented by a competent advocate, this appeal may never have seen the light of day.

 

 

An application for costs was made. As readers will know, costs in care proceedings are fairly unusual, although possible,

  1. The mother is now legally aided. However, during the preparation for this appeal it appears that there were periods when it was withdrawn. In any event, the mother apparently is at risk of future recoupment from the Legal Aid Agency. She applies for costs of the appeal. Written submissions and revised cost schedules have been submitted.
  1. The local authority relies on Re T (Costs: Care Proceedings: Serious allegation not proved) [2012] UKSC 36 to resist the application. It argues that it has not adopted an unreasonable stance or been guilty of reprehensible behaviour. For the reasons above I believe that the position that it has taken to have been unreasonable. In the alternative, it cites London Borough of Sutton v Davis (Costs) (No 2) [1994] 1 WLR 1317 as authority to the effect that this court should not make an assessment but should order costs to be paid in a sum assessed by the director of the LAA. This proposition is based upon the obiter dicta remarks of Wilson J, as he then was. He urged reform of the then current legal aid regulations. They do not endure in the light of the 2010 Standard Civil Contract entered into between the mother’s solicitors and the Legal Aid Agency, section 1, General Provisions 1.50B of which provides: “This paragraph represents our authority pursuant to section 28(2)(b) of the Act, for you to receive payment from another party….and to recover those costs at rates in excess of those provided for in this Contract or any other contract with us. This court must address the claim for costs with a view to the context in which it arises. The director of the LAA is not in a position to assess whether the same have been unreasonably incurred.
  1. The necessity for this appeal emanates from the local authority’s failures to address the issues correctly in front of Keehan J. I would order them to pay the costs of the mother claimed in the sum of £22,756.68

The Court of Appeal don’t formally say that the informal approaches by counsel to the DJ played any part in this decision, but they hardly take pains to point out that they played no part. Those might have been very expensive emails.

 

[I am grateful to one of my readers for politely, judiciously and correctly letting me know that Keehan J is of course not a Circuit Judge, as I had been wrongly designating him - I have now edited out those incorrect references. ]

conditions on placement order, what does the Fox say ? (By fox, i mean Court of Appeal)

 

The Court of Appeal in Re A (Children) 2013 grappled with an interesting issue.  In the care proceedings, the Judge was weighing up the needs of the children and reached the conclusion that adoption was in their best interests IF and only IF, the adopters that the LA would find in the future would meet a series of conditions. The Judge then reserved the case to herself for any future applications and made a Placement Order with a series of conditions – if the conditions weren’t met, the placement order couldn’t be exercised.

“2. The court has accepted the list of attributes of prospective adopters for M and K recommended by the court appointed expert psychologist, Mrs Buxton, that as a pre-requisite to placement of the children for adoption, prospective adopters to be suitable must be:

a) two in number;

b) energetic;

c) free from attachment difficulties of their own;

d) experienced carers;

e) fully appraised of the children’s background, attachment difficulties and placement needs for the duration of their minority and willing to undergo specific training so that they will be able to cope with M in particular;

f) there must be no other children within the home

g) ready, willing and able to promote direct face to face contact with their brothers, B, B and L preferably four times per year but at least a minimum of twice per year.

3. The court was satisfied on the basis of all the evidence before it and on its analysis of the welfare checklist issues that adoption of M and K was proportionate and the most appropriate care plan to promote and safeguard their welfare, save that the care plans are approved and placement orders granted on the basis that the list of attributes set out above is adhered to by the local authority.”

The LA appealed that, on the basis that this was law out of thin air (no such thing as conditional placement orders) and that this was in complete breach of the separation that Parliament had set up between Courts (decide the facts, make the decision about applications and orders) and LA’s (deliver the orders on the ground and make day to day decisions)

The Court of Appeal having forgotten / ignored that principle entirely in Neath Port Talbot, found it again down the back of the sofa.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1611.html

    1. All parties accept Mr Rowley’s description of the statutory boundary that exists between the role of a court and that of a local authority upon the making of an order authorising placement for adoption under ACA 2002, s 21. The statutory structure established in relation to placement for adoption orders is, in this respect, on all fours with that which applies to final care orders under CA 1989, s 31. The House of Lords decision, and in particular Lord Nichols description of the inability of a court to impose conditions upon a final care order, in Re: S; Re: W (Care Order: Care Plan), applies in like manner with respect to an order under ACA 2002, s 21 authorising placement for adoption. No party before this court sought to argue to the contrary and there cannot be any ground for drawing a distinction between the two statutory schemes in this respect.

 

    1. In the absence of any express statutory provision to the contrary, Parliament must be taken to have intended that the ‘cardinal principle’ identified in Re: S; Re: W would apply to the making of a placement for adoption order. The wording of the key provision in ACA 2002, s 21(1) could not be more plain:

 

‘A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority‘ [emphasis added].

The fact that in almost all cases the court will be making a final care order under CA 1989, s 31 at the same time as making a placement for adoption order, and there is plainly no power to add conditions to a care order, only goes to underline the position.

    1. When a placement for adoption order is made, the family court retains only limited powers arising from the court’s jurisdiction to:

 

a) vary or revoke the placement order [ACA 2002, ss 23 and 24];

b) make orders for contact [ACA 2002, s 26].

The position is as described by Wilson LJ in Re A (A Child) (Adoption) [2007] EWCA Civ 1383 (set out at para 20 above); the only opportunity that a family court has to consider the merits of a particular person to adopt a child who is the subject of a placement for adoption order occurs when that person applies for an adoption order.

    1. In the present case the judge was clearly driven to take the unusual step of setting out, in express terms, the attributes that she considered to be essential if adoption were to be beneficial for each of these two boys. The judge was obviously anxious that the past performance of the local authority indicated that, if left to its own devices, the necessary mix of attributes might be watered down or compromised for the sake of achieving an adoptive placement. As a child focussed and well motivated action, the judge’s stance cannot be faulted. The question is whether her action was legally permissible, or whether it crossed the boundary that is so clearly drawn between the role of the court and that of a local authority under a placement for adoption order.

 

    1. The debate before this court has focussed upon what label might best describe the judge’s actions in seeking to maintain the local authority’s search for adopters to those who meet the attributes on the ‘shopping list’. The local authority categorise the judge’s stipulations as ‘conditions’; Miss Heaton describes them as a transparent ‘invitation’ to the local authority; and Mr Weston says that they are no more than a ‘recording’ in the court order of the shopping list of ‘requirements’. To my mind these proffered labels are matters of semantics. There is no magic in whether or not the judge’s requirements are ‘conditions’; the word ‘condition’ has no legal status in this context. What matters is the substance of the structure that the judge sought to deploy in order to achieve what she saw as necessary to meet the needs of these children. In terms of the substance of that structure I am in no doubt that the judge’s order in this case, together with the stipulations in her judgment, fall well beyond the line that divides the role of the court and the role of a local authority under a placement for adoption order. That conclusion is established by the following aspects of the judgment and court order:

 

a) the judge’s conclusions at paragraphs 7.13-7.16 and 7.18 (set out at paragraphs 10 and 11 above) hold that only an adoptive placement that meets each of the ‘shopping list’ requirements will be in the welfare interests of each of the boys;

b) the conclusion at paragraph 7.30 in terms that ‘if the right adopters cannot be found, adoption is not in the interests of these children and should not take place’;

c) in ‘recording’ number 2 in the court order the ‘shopping list’ attributes were described as a ‘pre-requisite’ to the placement which ‘must’ be met;

d) recording number 3 states that the care plans are approved and the placement orders granted ‘on the basis that the list of attributes set out above is adhered to by the local authority’.

    1. The judge’s decision to reserve all future hearings to herself is not, looked at on its own, a matter of concern. On the contrary, judges are encouraged to ensure judicial continuity in children cases if at all possible. However, when set against the other matters which, as I have held, were beyond the judge’s jurisdiction, the decision to reserve the case only goes to add to the establishment of a role for the judge in this case which amounted to overseeing the implementation of the care plan in a manner which is impermissible.

 

    1. The matters raised in this appeal are not academic. Miss Heaton has confirmed that if the mother were not satisfied with prospective adopters chosen by the local authority, she would seek to bring the matter back to court by applying for leave to revoke the placement orders (under ACA 2002, s 24) and/or issuing judicial review proceedings. Indeed, this court was told that the mother has already issued an application under s 24(2) which is now due to come before HHJ Kushner for determination.

 

  1. In all the circumstances, the local authority has made good its appeal and, if the placement orders are to survive this appeal hearing, I would allow the appeal, strike out recordings 2 and 3 from the court order and declare, through this judgment, that the placement orders are to stand as unencumbered orders in the standard terms of ACA 2002, s 21.

 

Hooray say the local authority, wiping their collective brows with a polka dot handkerchief.

But stop, mother had anticipated this, and cross-appealed on the basis that if the conditions didn’t stand, the Placement Orders should be set aside – the “nothing else will do” test not having been met

 

2. The Cross Appeal: ‘What is a judge to do?’

    1. On more than one occasion during her submissions, Miss Heaton gave voice to a question that is likely to have been at the forefront of HHJ Kushner’s mind as she contemplated how best to proceed within the formal structure of ACA 2002 to produce an outcome which met the needs of these two boys as she so plainly saw them. That question was ‘what is a judge to do?’ in circumstances where she is satisfied that the welfare of a child only requires adoption if an adoptive placement can be found which meets a number of specific attributes, but, if those attributes are not present, the child’s welfare would not be best served by adoption. The judge chose a course which, as I have held, was not, as a matter of jurisdiction, open to the court. My conclusion therefore begs a repetition of the question, ‘what, then, is a judge to do?’.

 

    1. The answer to the question is, in my view, plain and straightforward. It is to be found in ACA 2002, s 52(1):

 

‘The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption … unless the court is satisfied that … the welfare of the child requires the consent to be dispensed with.’ [emphasis added]

    1. The judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 set out in clear terms how the word ‘requires’ in s 52(1) is to be applied. The passage in Re P is well known and there is no need to repeat it here. The question, after applying the life-long focus of the welfare provisions in ACA 2002, s 1, is whether what is ‘required’ is adoption, as opposed to something short of adoption. The interpretation of s 52 in Re P was expressly endorsed by the Supreme Court in Re B (A Child) [2013] UKSC 33 and given general application in the judgments of the court where the need for a proportionate justification for adoption was underlined by the use of phrases such as “nothing else will do”, “a very extreme thing” and “a last resort”.

 

    1. As I have already held, it was not open to the court to seek to limit or exert direct influence over the choice of prospective adopters under a placement for adoption order. On that basis and on the express findings of the judge it was simply not open to the court in the present case to go on to conclude that the welfare of either of these two boys required adoption as opposed to something short of adoption; it was not possible to hold that ‘nothing else will do’. The judge was expressly contemplating that long-term fostering would ‘do’ and, indeed, would only be displaced as the better option for the boys if a ‘shopping list’ compliant adoptive home could be found. In the absence of a power to influence and control the local authority’s role under a placement for adoption order, the test in ACA 2002, s 52(1), in so far as it relates to a placement order, must be read in the light of s 21(1) with the welfare requirement being evaluated on the basis that the placement is to be ‘with any prospective adopters who may be chosen by the authority’.

 

    1. A court may only make a placement for adoption order if, under ACA 2002, s 21(3), it is satisfied either that each parent or guardian is consenting, or that the parent or guardian’s consent to the child being placed for adoption should be dispensed with under the terms of ACA 2002, s 1 and s 52. Against the test in ACA 2002, s 52(1) and on the findings of the judge, the ground for dispensing with parental consent in this case was simply not established and as a result the court did not have jurisdiction to make placement for adoption orders.

 

    1. I would therefore hold that the cross appeal of the mother succeeds and that the placement for adoption orders made in this case must be set aside with the result that the two boys will now simply be subject to final care orders.

 

  1. The absence of placement for adoption orders will no doubt render more difficult the task of finding prospective adopters for these two children, but the local authority remain able, under the care order, to continue to search for adopters.

 

So, although the LA won on the principle that conditions couldn’t be attached to a Placement Order, it was the most pyhrric of victories, since that persuaded the Court to nuke the Placement Order.

 

Look at that last sentence – it is a masterpiece of understatement.

 

At the moment, we have a national crisis of adopters – far more children need places than there are places for them. Do you honestly think that anyone who is approved as an adopter, who are in high demand and sought after by multiple local authorities for multiple children, are going to commit to a process of matching with children WHEN THE CHILDREN may not be approved for adoption? No way.

Assuming that you get someone nuts enough to do that, what would the process actually involve?

1. The LA revives their application for a Placement Order

2. The mother, the father, the Guardian and Judge all say – we need to see as much detail as possible about the adopters

3. Every inch of that information is pored over, critiqued, nit-picked looking for flaws.

4. If there has been  passage of time in the search, one of the parents will revive their desire to be reconsidered or to put forward a family member

5. The parents may not get public funding (stand-alone Placement Orders aren’t non-means, non-merits public funding, you are at the whim of the Legal Aid Agency)

6. In order to get the Placement Order, the Court will want to be satisfied that these carers ticked all of their criteria

 

All of this being before the child can be placed with the carers identified. How is that sitting with no delay?

 

 

How is this not moving the assessment of adopters and the matching of children with adopters away from qualified professionals and into the Court? How does this square even for a second with the view in the Children and Families Bill on Courts backing the heck out of care planning?  (I know, the Bill isn’t law, but that hasn’t stopped us wholesale adopting the 26 week proposal and ramming that through – why is the other major limb, care planning being firmly back with LAs being utterly ignored?)

I have no problem with the Courts having jurisdiction over this stuff, if Parliament debates it and gives it to them, but not like this. An important decision for any family practitioner – it is another tool in the argument toolkit for fighting a Placement Order, and another obstacle for LA’s.

 

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