These are a selection of issues that I now consider are somewhat up in the air following the autumn decisions by the Court of Appeal in public law cases. I’m sure that there are many others
1. What, precisely, does “nothing else will do” mean? [see my article in Family Law for more digression on this topic alone http://www.familylaw.co.uk/articles/nothing-else-will-do-why-the-last-resort-won-t-necessarily-be-the-last-word ]
2. When properly rigorous judgments that comply with Re B-S finally filter through into appeals (i.e about 2 months from now), will the Court of Appeal intervene to replace the judicial decision about Placement Orders? So far, what we have had is “go back and rehear the case, as the judgment is deficient” – what we don’t know is the extent to which the Court of Appeal will want to get under the bonnet of cases where the judgment ticks the boxes (to mix metaphors horribly)
3. For the purpose of appeals, now that we know that almost anything one would ever appeal in public law cases has the test of “wrong” and not “plainly wrong” – how much distance is there between those two phrases?
4. Has the previous latitude given to the decisions of the Family Proceedings Court that their judgments were not intended to be compared to the sort of judgment one would expect of a professional judge – and the time constraints on them were to be weighed in the balance (Re M – Section 1995 appeals 1995 and Re O Care versus Supervision 1996) now gone where the case involves placement outside the birth family? The rigorous requirements of Re B-S seem to apply firmly to the FPC as well as to professional judges. Where exactly does this fit within the standardised template?
5. Does the Court of Appeal decision in Re B (A child) 2012 2 FLR 1358 which suggests that even a solid application for leave for party status or leave to apply for a residence order can be refused if the impact on the child (including delay) is sufficient, stand in cases where Placement order is an alternative [note particularly that the test now appears to be higher for s10(9) leave than it is for leave to oppose adoption]
6. Is dual-planning still legal, given the conflict between Re P and “nothing else will do?” as highlighted in the Re DR 2013 case?
7. Where a Court is satisfied that the child has to be permanently placed outside the family, do they have to reject long-term fostering as an option in order to make a Placement Order? (again, as floated in the Re DR 2013 case)
8. Should adopters be represented at a leave to oppose adoption application?
9. Should the child?
10. Will parents be given public funding for such applications? If not, will judicial reviews ensue?
11. What exactly does a contested adoption hearing involve? To what extent will the parents be able to cross-examine the adopters? [particularly relevant if the parent can’t get funding for lawyers at a contested adoption hearing] How will Guardians approach establishing the wishes and feelings of the child without causing disruption? What impact will a contested adoption hearing have on future contact ? How precisely can a Court assess the impact of having a contested adoption hearing when deciding an application for leave when nobody yet knows what a contested adoption hearing would involve?
12. Given that Re B-S and Re W both emphasise that the task for a parent at a contested adoption hearing is not necessarily to secure the return of the child but to persuade the Court to make an order other than adoption, and that at a contested adoption hearing the test will STILL be that before an adoption order can be made, “nothing else will do” – aren’t the Courts going to be faced with arguments that a Special Guardianship Order should be made instead?
13. What impact will the combination of uncertainty over contested adoption hearings AND the possibility of a Special Guardianship Order being imposed on people who wanted to adopt have on (a) timing of adoption applications and hence the Government desire to have adoption orders made in a more timely fashion [since you would be downright CRACKERS as a prospective adopter to lodge your application now when you may well end up being a test case] and (b) people’s desire to become adopters and (c) the willingness of approved adopters to seek to care for children from England and Wales rather than from abroad where they won’t face those issues.
14. What will be the new test for leave to revoke Placement Orders – given the alterations to the test for leave to oppose adoption, the test will clearly come down, so any Court deciding such an application NOW will be doing so in the dark
15. Will the test for leave to apply to vary or discharge a Special Guardianship Order change? The test was largely modelled on the leave to revoke Placement Orders / leave to oppose adoption “change of circumstances + that change being sufficient to justify any disruption” which is now altered as a result of Re B-S and Re W.
16. When will the argument about the Court imposing a plan of therapeutic support on the LA, which is hinted at in both Re B-S and Re W (Neath Port Talbot) take place? How will it be decided? Can it be decided without going to the Supreme Court, given the Supreme Court decisions in Barry and Kent County Council v G?
17. To what extent do the judicial steers in Neath Port Talbot towards “order the LA to file a care plan in line with the judgment given, and JR them if they refuse to do so” impact on the regulatory duties under the Care Planning and Placement Regulations that mean that the Local Authority cannot approve a placement of a child with parents under an ICO unless satisfied that to do so “safeguards and promotes the child’s welfare”
18. To what extent do the judicial steers in Neath Port Talbot apply to Interim orders? Not at all, or is there no difference between trying to compel a final Care Order at home and an Interim Care Order at home, on a Local Authority who are resistant?
19. Given that the Court of Appeal consider that the welfare of the child is throughout their lifetime and talk about decisions in care proceedings having impact that last for perhaps seventy, eighty years, how significant in that context is a delay of eight weeks in resolving the child’s future? Can any application to extend the 26 week period for a further 8 weeks be refused purely on the impact of delay? What the hell does that mean for timescales and targets? Will the Court of Appeal uphold any case management decision to refuse such an extension? Given that if there is such a refusal and it is appealed, the case can’t be progressed until the appeal is determined, aren’t Judges likely to be invited to take a pragmatic approach on any case for extension that has ‘solidity’ rather than risk an appeal in such uncertain times?
20. Given that the appeals in Re B-S and Re W took over six months from decision to judgment, when are we likely to get answers to these burning questions?