Sadly, Re JB (Children) 2013 isn’t up on Baiili yet, but it will be very important for anyone who is doing a case involving adoption. It is Court of Appeal, and post-dates RE B-S – in one of those quirks, I think that when it was being orally argued, Re B-S was not out, but it was out and taken into account in the judgment.
You may remember some of these key points from Re B-S
1. Vital to have in mind the striking language used by the Supreme Court (for which read Baroness Hale) about proportionality in Re B
2. Linear approach (as in my last post) is out, and the Court have to look at all the options holistically
3. Judgment has to consider all of the advantages and disadvantages of each placement option for the child, with rigour
4. Can’t rule out the parents simply because that option requires more support than the LA wish to provide.
And we know that seven cases (so far) have had Placement Orders overturned and sent back for re-hearing for not following those principles, even though many of them weren’t in existance at the time the Court who made the order decided the case.
Well, in Re JB, the Court of Appeal identify that all of those features are lacking in the judgment. They also add in that there is a relative, rejected by the LA, effectively because the support that would be required would be too high.
What you would assume, therefore, is that the Placement Order would be overturned, and the case sent back for re-hearing, perhaps with some additional judicial guidance about prospective kinship carers and support and what Courts have to do when faced with a kinship carer who still seeks to care even when faced with a negative report from the LA.
No, the Placement Order stood.
In the interests of fairness, it will only be when the judgment goes up and I can draw out and quote how that decision was reached that we can hope to put it into context, but in a nutshell, the Court of Appeal seemed to feel that if the Court HAD done those things they would have reached a decision of Placement Order and there was enough in the judgment to make the Court of Appeal consider that the Judge was not wrong.
How that helps anyone call an appeal’s prospects of success now is very hard; and how a Court at first instance is supposed to look at these two authorities (not so much on the analysis of options but the ‘support’ and ‘nothing else will do’ options) is beyond me.