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Tag Archives: Re B

Re R – is B-S dead?

 

That’s the Court of Appeal case that we’ve been talking about all week.  It happened to come in time for my deadline for my Family Law column, so my analysis of it is over there.

 

I know not all of you read Family Law, so here is the link.

 

In very short terms, the Court of Appeal layeth the smackdown on those people who were pushing, stretching and exagerrating Re B-S to be an authority for “leave no stone unturned, climb every mountain, ford every stream – till you avoid adoption, that’s B-S’s dream”.   BUT  Re B, and Hale’s formulation stands – the President specifically says that Courts can’t make a Placement Order unless satisfied that Lady Hale’s formulation applies, and every single bit of content in Re B-S still applies.  In a nutshell, Re R says to advocates, don’t take bad points and don’t appeal on flimsy technicalities based on your notion of what a post Re B-S judgment looks like.

 

http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back#.VJLA_3vzOud

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

Who you gonna call? Myth-busters

 

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

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

 

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

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

 

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

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

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

 

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

 

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

 

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

 

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

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

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

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

 

And I completely agree with the document on Myth 4

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

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

 

 

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

Let’s just take Myth number 5 in detail.

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

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

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

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

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

 

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

Surrey County Council v S 2014

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

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

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

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

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

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

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

 

Bustin’ makes me feel good.

 

 

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

 

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

 

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

 

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

 

There is no Narey, there is only Zuul

There is no Narey, there is only Zuul

Why is there something instead of nothing?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

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

 

 

 

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

 

 

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

 

 

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

 

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

 

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

 

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

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

 

 

 

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

 

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

 

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

 

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

 

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

Step-parent adoption – telling the birth father

 

The High Court have just considered this issue in  A and B v P Council 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1128.html

This is a step-parent adoption, i.e the child’s step-father seeking to become the child’s legal father, which would have the effect of severing the birth father’s legal relationship with the child. There are a raft of nationalities involved here, and the birth father’s name is on the birth certificate. The birth was recorded in Thailand, and thus it was not clear whether this gave him “parental responsibility”  [The High Court had initially decided to proceed on the assumption that he DID have PR]

The mother and step-father say that they do not have an address for the father, and he has had no contact with the child, who is now 9, for many years – in fact since just after his birth.

The issue for the Court was whether the adoption could go ahead without father being served with notice.

 

The Relevant Legal Framework

 

 

  • There is a measure of agreement between the parties, the Local Authority and Cafcass Legal regarding the relevant legal framework for this application.

 

 

 

 

  • A parent with parental responsibility is an automatic party to the proceedings under rule 14.1 Family Procedure Rules 2010 (FPR 2010).

 

 

 

 

  • A parent who does not have parental responsibility may be given notice of the proceedings and that person may apply to the court for party status (rule 14.3 FPR 2010).

 

 

 

  • It is agreed that if the father did hold parental responsibility under Thai law, that is not recognised in England and Wales for the purposes of English adoption law.

 

 

 

 

  • This is due to the operation of Article 4 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (Concluded 19 October 1996) (hereafter referred to as the 1996 Convention).

 

 

 

 

  • Under Article 16 of the 1996 Convention parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State. This is even if the State of habitual residence is a non-contracting State (Article 20).

 

 

 

 

  • Under Article 17 the exercise of parental responsibility is governed by the law of the State of the child’s habitual residence and if the child’s habitual residence changes, it is governed by the law of the State of the new habitual residence.

 

 

 

 

  • However, when considering the scope of the 1996 Convention, Article 4 makes clear it does not apply to the establishment or contesting of a parent-child relationship, decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption or the name or forenames of the child. The combination of the Explanatory Report on the 1996 Hague Convention by Paul Lagarde (in particular paragraph 28), the revised draft practical handbook on the 1996 Convention (May 2011) (in particular paragraph 3.37) and the Practice Guide on the 1996 Convention published by the Ministry of Justice (February 2013) (in particular page 6) make clear Article 4 is to be interpreted widely and includes all aspects of the adoption process, including the placement of children for adoption.

 

 

 

 

  • It is therefore agreed by the parties that even if the father did hold parental responsibility pursuant to the operation of Article 16, by operation of Article 4 he would not be treated as a parent within the context of s 52(6) ACA 2002. Within that context the father is not treated as a father who holds parental responsibility unless he has acquired it under sections 2 or 4 Children Act 1989 (CA 1989), which this father did not.

 

 

 

 

  • The consequence is that the father in this case does not hold parental responsibility for M within the meaning of the ACA 2002, his consent to the adoption under s 47(2) ACA 2002 is not necessary and would not be required to be dispensed with under s 52 ACA 2002. He is therefore not an automatic party to the adoption application under rule 14.1 FPR 2010.

 

 

 

 

  • However, notwithstanding that an unmarried father with ‘foreign parental responsibility’ is not a father with parental responsibility for the purposes of English adoption law the provisions of rule 14.4 FPR 2010 provide as follows:

 

 

 

Notice of proceedings to person with foreign parental responsibility

14.4

(1) This rule applies where a child is subject to proceedings to which this Part applies

and –

(a) a parent of the child holds or is believed to hold parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom; and

(b) that parent is not otherwise required to be joined as a respondent under rule 14.3.

(2) The applicant shall give notice of the proceedings to any parent to whom the applicant believes paragraph (1) applies in any case in which a person who was a parent with parental responsibility under the 1989 Act would be a respondent to the proceedings in accordance with rule 14.3.

(3) The applicant and every respondent to the proceedings shall provide such details as they possess as to the identity and whereabouts of any parent they believe to hold parental responsibility for the child in accordance with paragraph (1) to the court officer, upon making, or responding to the application as appropriate.

(4) Where the existence of such a parent only becomes apparent to a party at a later date during the proceedings, that party must notify the court officer of those details at the earliest opportunity.

(5) Where a parent to whom paragraph (1) applies receives notice of proceedings, that parent may apply to the court to be joined as a party using the Part 18 procedure.

With that in mind the Court went on to consider the issue of father’s PR

  • I am satisfied the mother and step-father do not believe the father has parental responsibility under Thai law and there is a rational foundation for their belief for the reasons set out in the previous paragraphs. That belief is derived from a number of different sources and there is no suggestion that the mother and step father have done other than comply with all the relevant authorities both in Thailand and here.

 

 

  • In the light of that I do not consider the mandatory requirement for notice of these proceedings to the father applies as, in accordance the provisions of rule 14.4 (1) and (2) the applicant (in this case the step-father) does not believe the father holds ‘parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom’.

 

 

  • Even if the father does not hold foreign parental responsibility the court is still required to consider whether the father should be given notice of the application.

 

 

The High Court then looked at the case law about giving fathers notice of adoption proceedings (or not giving them notice, as the case may be). Most of these arise from ‘relinquished’ babies, where the mother seeks to give the child up for adoption but does not want the father to be informed (often there’s a short-lived relationship, or an abusive one, or the pregnancy has been concealed from the mother’s own family).  There are some gray areas at present as to whether these are thus ‘consensual’ adoptions (and Re B, B-S don’t apply) or whether because father hasn’t consented they are in reality ‘non-consensual adoptions” to which Re B and Re B-S  (the Court having to be satisfied that ‘nothing else will do’) apply.

 

[The same gray area potentially arises here, since the father was not consenting, but the mother was. The High Court don’t actually resolve that gray area – not sure whether that lets the conclusion be drawn that the High Court, given they don’t use ‘nothing else will do’ wording  means that they consider a case of THIS kind to be consensual adoption. It may not be safe to draw that conclusion, since the last paragraph indicates that having dealt with the issue of service on father not being required, the Court would go on to consider the MERITS of the application on another occasion.   Frankly, if “nothing else will do” applies to step-parent adoptions, it is hard to see how they would ever be granted.  The child is in the placement, there are other legal routes to secure parental responsibility for the step-father, how could one ever consider that ‘nothing else than step-parent adoption would do’?)

 

 

  • it has long been recognised that in applications for adoption the position of the natural father who did not have parental responsibility had to be considered and a decision taken in each case whether, or not, to give him notice of the proceedings. Whether to do so should be considered on the facts of each case.

 

 

 

 

  • Re H (a child)(adoption: disclosure), Re G(a child)(adoption: disclosure) [2001] 1 FCR 726 set out that as a matter of general practice, directions should be given to inform natural fathers of such proceedings unless for good reasons the court decided it was not appropriate to do so. The issue of whether or not the father had a right to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as set out in Part 1 of Schedule 1 of the Human Rights Act 1998 was important to establish. If he did then generally Article 6(1) of the Convention is engaged and there would need to be strong countervailing factors to outweigh the father’s Article 6 rights in favour of the mother’s right to private family life. Such countervailing factors may include serious domestic violence that placed the mother at serious physical risk. As the then President, Dame Elizabeth Butler Sloss, observed in Re H (ibid) at para 48 ‘There may well be other situations in which a father should not be informed of the proceedings and my examples are, of course, not exhaustive’. If the father does not have any Article 8 rights the provisions of Article 6 are not engaged and notice does not need to be given, unless there is a real possibility that he might make an application under the CA 1989 which the court ought to entertain.

 

 

 

 

  • In the cases where the court is being asked to exercise its power to grant exception from the rules which require a father to be given notice the previous cases establish this power should only to be exercised in ‘highly exceptional circumstances’ (per Thorpe LJ Re AB (Care Proceedings: Service on Husband Ignorant of Child’s Existence) [2003] EWCA Civ 1842 para 3) or a ‘high degree of exceptionality is required’ (per Longmore LJ M v F [2011] EWCA Civ 273 para 25). This will depend on the court’s assessment of the risk of future harm. In M v F (ibid) para 3 Thorpe LJ stated ‘When evaluating the risk of future harm there can be no minimum requirement. The court’s first task is to identify the nature and extent of the harm in contemplation. The greater the harm the smaller need be the risk. Obviously, the risk of death may be very small, whereas the risk of turbulence in family relationships would need to be much higher.’ In assessing the likelihood of harm arising from notice of the proceedings the test to be applied is the test in Re H (minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 namely ‘in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case’.

 

 

 

 

  • There may, in reality, be little difference in the principles between these two strands of cases as a critical starting point is to establish whether or not the father has any right to family life pursuant to Article 8. It is agreed this is a question of fact and there are a number of matters for the court to consider. It has been said that the threshold for establishing family life has been set at a fairly modest level.

 

Applying the broad principles to the case, the Court heard representations about allegations of previous violence from the birth father to the mother

 

 

  • I have very carefully considered the important competing considerations in this case and I am very mindful of the general practice to inform natural fathers of applications such as this which fundamentally affect the status of a child. I have considered this aspect of the case in the context of rule 14.4 and, for the purposes of this analysis assumed this father does have foreign parental responsibility. So there is a mandatory requirement under the rules for him to be given notice of the proceedings.

 

 

 

 

  • I am considering this issue in the context of my finding that the father, for the reasons I have already explained, does not have any existing Article 8 rights. He is someone who has not sought to maintain his ties with M.

 

 

 

 

  • The wish of the mother and step-father for confidentiality is, in my judgment, an exceptional circumstance, on the facts of this case, justifying the court exercising its power to grant exception from the rules requiring the father to be given notice. The evidence based fears expressed by the mother regarding the father’s behaviour is founded on the father’s previous violent behaviour to her, M and her wider family which is supported by corroborative evidence. In my judgment there is a real possibility that if the father is informed of this application he could physically harm or threaten the mother or the wider maternal family. It is a possibility that cannot be ignored having regard to the extent of the father’s alleged violent behaviour towards the mother and her wider family in the past, in the context where the maternal family remain in the same home which is known to the father. On the particular facts of this case the balance, in my judgment, comes down in favour of the father not being notified about these proceedings, even if he could be located.

 

 

I am satisfied the Local Authority in this case does not need to take any further steps regarding the father for the reasons outlined above.

Proportionality and harm

 

Holman J has given judgment in an appeal, London Borough of Ealing v JM and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1084.html

 

The appeal is not concluded (the Judge has asked for some more information about the placement proposals and family finding) and I hesitated a bit about writing at it whilst it is still ongoing, but the judgment was published, and it does raise one interesting aspect, which I don’t think we have seen the last of.

Now that the European jurisprudence about proportionality has been echoed by our Supreme Court and Court of Appeal, the underlying context to that is that when deciding whether adoption is proportionate one has to be looking to what would happen or be likely to happen to the children at home.

In this particular case, the mother tried unsuccessfully to run a “Kenneth Williams defence”   (Infamy, infamy, they’ve all got it in for me)

 

  • The sad and worrying part about this case is that, between her decision and judgment in mid July 2013 and the outcome hearing which began in late November 2013, the district judge had deliberately afforded a significant period of time within which there could, amongst other matters, be an assessment of the mother by an expert in order to try to find out why she had injured her two children in the ways described. Unfortunately, the mother did not cooperate with, or properly participate in, that assessment and therefore it is not possible to know whether she injured the children as a result of manageable stress or some other force of circumstances which could be recognised and managed in the future, or whether she did so out of, frankly, callousness or brutality. Unfortunately, the reaction of the mother to these proceedings and to the fact finding decision of the district judge in July has effectively been one of almost total denial. Instead of acknowledging and facing up to what she had done and seeking help about it, the mother adopted what the district judge was later to describe as a “conspiracy theory”. She has said and continued to say that the allegations had been fabricated; hospital documents, including photographs of the injuries, faked or forged; and she has said even that the examining doctor at the hospital is a non-existent person.

 

The part of the appeal that I am going to focus on relates to the findings of harm, and the case run by the parents that even if those findings were correct, this was not the sort of harm that justified adoption. (In effect that there are two separate thresholds – “significant harm” in the context of s31 of the Children Act,  but then the sort of significant harm which would make adoption a proportionate response).  Almost certainly what was in their mind was the finding of the original judge that the injuries to the children had been ‘relatively minor’

 

 

  • As I understand it from the judgment of the 7th January 2014, these children were living together with both their parents who were, and still are, themselves living together. In October 2012 the daughter, then aged three-and-a-quarter, said certain things at the children’s nursery which led to the children being examined first at the nursery and later at a nearby hospital. The hospital observed and recorded a number of scratches and other minor injuries on them, and the daughter gave what was described as “a vivid account” of how they had happened and blamed her mother. In the upshot, after the five-day hearing during June and July 2013, the judge concluded that the perpetrator of all the injuries was the mother. She concluded that the daughter had sustained nine minor injuries to her body, and the son had sustained five minor injuries to his body, all of which were caused non-accidentally. In other words, no less than 14 minor injuries, essentially scratches, had been deliberately caused to these two children by their mother. Additionally, and seemingly of even greater concern, the mother had caused two non-accidental -that is, deliberate – boot mark injuries to the shoulders of her daughter.

 

 

 

 

  • The district judge herself very clearly acknowledged and recognised, as had the children’s guardian, that the injuries themselves were not of a serious kind nor requiring any medical treatment. She said, at paragraph 122 of her outcome judgment of the 7th January 2014:

 

 

 

 

“The injuries … were not very serious. They were relatively minor.”

 

 

And this is how the parents developed that argument

 

As proposed ground 6 of the proposed appeal (namely at paragraph 41 of their skeleton argument for today) Mr and Mrs Haines have argued that:

 

 

“This placement order is made as a result of injuries to [the girl] which were very much on the lower end of the scale, to the extent that they did not even require any medical treatment, and it is submitted that a placement order is a disproportionate response to such injuries.” 

 

That is a point which Mrs Julie Haines further developed and submitted this afternoon. It does not, in my view, afford the slightest ground of appeal. First, as I have observed, the district judge herself was well aware that the injuries in question were not very serious and were relatively minor. Second, it is not actually correct to limit the injuries only to those to the daughter, for, as I have said, it clearly emerges from paragraph 9(1) of the outcome judgment that there were also five minor injuries to the son. So the picture here is of deliberate infliction of injury, albeit minor, to both children. Third, although overall the injuries may be described as “minor” they do include non-accidental, that is, deliberate, boot mark injuries to a girl who was at the material time aged about three. All this is evidence of a deliberately abusive attitude by a mother to both her young and vulnerable children.

 

And as you can see, Holman J, simply wasn’t convinced by that as a ground of appeal at all.   IF Re B ever gets to the European Court of Human Rights, this issue might be revisited. For the time being, crossing the threshold is sufficient, without needing a two tier significant harm test (one for orders that involve the child not being permanently separated, and one for orders that do)

It’s as plainly wrong as the nose on your face

In family cases now, is the appeal test “plainly wrong”  or “wrong?”  – Court of Appeal to grapple with this issue.

I remarked during my commentary on Re B, that I thought the Supreme Court might come to regret their decision that where an appellate Court is considering an appeal about threshold, there was no distinction between wrong and plainly wrong.

I didn’t think it might happen so quickly.

In Re BS (Children) 2013,  Permission was granted by MacFarlane LJ for an appeal from a decision of Parker J to refuse leave to oppose an adoption hearing, and it seems, from the reading of his decision, that he probably would have refused permission to appeal prior to Re B.

http://www.familylawweek.co.uk/site.aspx?i=ed114967

In particular, MacFarlane LJ felt that the issue of whether the test for appellate Courts now dealing with family appeals had lowered, in the light of Re B, from “has the applicant shown that the Judge was plainly wrong” to “has the applicant shown that the Judge was wrong”

The first of those two formulations has always been the test, and of course is a much higher hurdle, both in the appeal, and any application for permission. It reflects that with the majority of judicial decisions, a Judge might reasonably decide the case one way or another, providing that they give a detailed and reasoned judgment considering those things that are relevant and not considering things that are irrelevant, and applying the correct legal tests. With that in mind, a Court of Appeal can have all three Judges look at the case and think that they would have made a different decision to the original Judge, but still refuse the appeal, if the decision was within a reasonable spectrum of the decisions that the original Judge could have made. In essence, an appeal ought to be allowed if the Judge made a decision that on the facts before them a Judge could not have reasonably made.

You might well think that an appeal court ought to just decide if they think the judge got the case right, and that’s certainly a legitimate public debate to be had, but it isn’t what the law is.

Or at least, it wasn’t.

The problem with the Supreme Court hearing a case is that if they decide something, that can override any other previous decisions, and whilst they might, as in Re B, believe that they are making a very narrow qualification and adjustment to the law, it can result in far far bigger consequences.

Here’s what MacFarlane LJ said in the permission judgment

17. The short description of the matters I have in mind are as follows.  Firstly, at two stages in her judgment, the judge apparently referred to the test that she had to apply being a three stage test.  The judge quoted from Re W (paragraph 18), as I have just done, and then went on to say: “The second and third hurdle are conflated into one test”.  Then later in the next page of the judgment, she said again, “2nd and 3rd test have to be looked at together”.  I consider it is arguable that that displays an erroneous understanding of the test.  My reading of Re W is that the third fence that Thorpe LJ describes is one that is only faced by the parent if they succeeded in getting leave to oppose the adoption and they are sitting in court arguing the point in the full hearing.  That justifies to a degree granting permission to appeal, but if that was the only point in the case, I would have been reluctant to grant permission because the judge’s general approach to the determination of the issue before her seems to have been more generally in line with Re W and the threshold described there.

18. The second reason for granting permission to appeal arises from Re B.  First of all, in the judgments both of Lord Neuberger and of Baroness Hale, in particular at paragraphs 82 and 104 in the former, and 145, 198 and 215 in the case of the latter, very clear and firm descriptions are given of the high level of evidence that has to be established before a court can go on to make an adoption order in circumstances where the child’s parents do not consent to adoption.  Having read those judgments, and having read the Court of Appeal decision in Re W, I am concerned that the test in Re W may now need to be reconsidered in the light of the approach to adoption which has been restated in these very clear terms by the Supreme Court.  In particular, I am concerned that the words of my Lord, Thorpe LJ, that I have quoted from paragraph 17, where he describes as “exceptionally rare” a parent succeeding in an application of this sort may no longer be tenable.  Particularly I have in mind that a parent can only be in the position of making an application under section 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application being lodged.  Those are the very circumstances that trigger the jurisdiction under section 47(5).

19. There is justification therefore in my view in giving leave so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level.

20. Thirdly, and in a different context, each of the Justices in the Supreme Court describes the approach that is now to be taken at appellate level in relation to decisions which are not simply discretionary determinations by a judge, but are decisions which impact upon Convention rights, the human rights, of one or more of the parties.  Where an appeal takes place, Re B makes it plain that the appellate court has a duty to review the first instance judge’s compliance or otherwise with her obligation not to determine the application in a way that is incompatible with the Article 8 rights that are engaged.  Arguably such a review is, in my opinion, justified on the facts of this case.

21. Previously I would have applied a test of considering whether the prospective appellant here has a reasonable prospect of establishing that Parker J was “plainly wrong” in refusing permission to oppose.  Now it seems that the test is one that is potentially lower, namely of considering whether Parker J was “wrong”.  There is a need first of all to clarify which of those two tests does apply to an appeal of this sort on this topic, and if the lower level is applicable, namely that the judge was “wrong”, then on the facts of this case it becomes less clear that the mother has no reasonable prospect of persuading the full court that Parker J was indeed “wrong”.  That is particularly the case where, as I remind myself, the issue here is not the ultimate question of whether or not an adoption order should be made, but simply whether the mother can oppose the making of the order at a full hearing where the issue of parental consent is then determined afresh in the light of all the current circumstances.

Let’s look quickly at what the Supreme Court decided on the issue of the test for an appellant Court on threshold

They refer to all of the important cases on the test for appellant courts – G v G, Piglowska .

The Supreme Court then drew a distinction between cases where the Judge was exercising a discretion (presumably meaning that in those cases, Piglowska et al still applied, and the formulation was ‘plainly wrong’)  and cases where the Judge was not exercising a discretion, such as in answering the question as to whether threshold was met

(The underlining in this quotation from Re B is all mine, and it may help in your reading if you imagine me raising my eyebrows on those bits)

44. On any view there is nothing discretionary about a determination of whether the threshold is crossed. I consider that in the Court of Appeal Black LJ was correct, at para 9, to categorise it as, instead, a value judgement, particularly, but not only, when the court is surveying likelihood. Black LJ proceeded to adopt the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited above, at para 56, that the question on an appeal against the refusal of a judge to hold that the threshold had been crossed was whether it exceeded the generous ambit of reasonable disagreement. In my judgment in that case, from the outcome of which I dissented, I asked, at para 34, whether it had been “open” to the judge to refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had been “plainly wrong” to refuse to do so. Although these are matters of little more than nuance, I consider in retrospect that in that case none of the three of us afforded sufficient weight to the evaluative, as opposed to the discretionary, nature of a determination whether the threshold is crossed. Ward LJ’s reference to the generous ambit of reasonable disagreement seems apt only to the review of an exercise of discretion, as in G v G. My own reference to whether the judge’s determination had been “open” to him now seems to me to have been singularly uninformative. Perhaps Hallett LJ came closest to the appropriate test in her reference to whether the determination had been “plainly wrong”. But it is generally better to allow adjectives to speak for themselves without adverbial support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative. Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong.

 

 

Given that the Supreme Court is binding on all of us, unless and until either Parliament changes the law, or the European Court of Human Rights says that the Supreme Court were wrong in Re B  (cough, cough), the effect of that passage is fourfold

  1. Indisputably, the test for an appeal about threshold is NOW whether the Judge was wrong, not whether the Judge was plainly wrong.
  1. As determining threshold often arises from the way a Judge determined FINDINGS of fact about an alleged injury or alleged abuse, an appeal about a Judge concluding that as a result of those findings, threshold is met, might well now be decided on “wrong” rather than “plainly wrong”
  1. The Supreme Court have developed a two tier test for appeals – one where the Judge was exercising a discretion (where they have to be plainly wrong)  and one where they are not (where they just have to be wrong)
  1. Given that the Supreme Court forgot to set out a test for which category any given decision would fall into, there is going to be satellite ligitation, as here as to which category the case falls into.

For what it is worth, my own view is that on the Re B  “plainly wrong v wrong” issue, the existing caselaw on refusing / granting leave to oppose an adoption order is extraordinarily plain that the Judge is exercising a discretion and thus I believe that it is untouched.

Having said that, I still cannot FATHOM why the Supreme Court considered that in determining whether threshold was met, the Court was not exercising judicial discretion, still less that this was the case “on any view”  and when one looks at what a Judge has to do when determining if given behaviour or allegations of such behaviour constitutes the threshold criteria, it is hard to argue that such process is markedly different to the test in the leave to oppose adoption (does the change warrant a reopening of the case).

I can see potentially that if a Court found that there HAD BEEN NO change in circumstances (the first limb of the test in leave to oppose adoption), post Re B, an appeal about that would probably be on the basis of whether the Judge was wrong, the second limb (given that change, is it in the child’s interests to reopen the case) would, in my mind, be on the basis of whether the Judge was plainly wrong.

But until the Court of Appeal tell us what they think about any suggestions that the Re B formulation will bleed out beyond simply threshold cases, we won’t know. Nor do we know whether that ‘wrong’ versus ‘plainly wrong’ formulation will bleed out into cases much wider than the Children Act 1989 and Adoption and Children Act 2002.

I remain amazed, that the Supreme Court ever considered that introducing a two tier test for appeals, and not clearly setting out how one is to sift categories, was something that they needed to do, or that it was ‘little more than nuance’

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