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Nothing else will do – Court of Appeal clarification

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

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

 

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

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

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

 

 

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

 

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

 

Re M-H (A child) 2014

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

8 responses

  1. I Think Mr Justice Mostyn got it just about right !! In brief other European countries find alternative solutions to the same problems that we have, that “will do” so why can’t we??

    :-MR JUSTICE MOSTYN said”PARA 35. The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious.”

    Link – http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.html

    • Ashamed to be British

      Have to agree … you’re right, it should never be an option when there is always another option, or as my motto goes ‘if you can’t rule it out, rule it in!’

    • I thought you would enjoy that particular paragraph. It’s a valid point. Are we ahead of the rest of Europe, or badly out of touch? It might puzzle some people why when the Government undertook a review of Family Justice, the issue of adoption wasn’t on the table for debate and that the only foreign jurisdiction we looked at for guidance was Australia (who do non-consensual adoption) rather than our European cousins.

  2. “The court should be satisfied that there is no practical way that the Local Authority (or others) can provide the requisite assistance and support required for the child to be able to remain with the family” which is Nothing else Will do and Proportionate.

    The presumption that the children’s best interests are served by being with their parents whenever possible. Decisions which involve long term separation of a child from their family for adoption will require “A high degree of justification”, be “necessary”, “nothing else will do” especially where intervention is extreme (such as adoption).

    I really wish I had the time to publish my book on the matters above, every month, without fail the matter is debated up in these parts till the cows come home.

    We have to look at the situation previous to Re. B, Re. B-S and analyse the ways we were dealing with these questions then and compare with how we are doing with the same set of questions now, previously the courts would simply take a linear approach [That’ll Do], now, post Re. B and B-S it has to be a Global Holistic Approach, [Nothing Else Will Do]

    We need to take that in the context of what was once deemed a simple rubber stamping exercise which many thought it was just that, to a more rigorous analysis with potential possibilities.

    There is only one case I know about where the pot of possibilities were bullet pointed and went from A to F, the Judge then set about dismissing the points one by one, until he reached the final possibility that suited the situation [not the parents wishes though], that case was in fact Re.B the aftermath,

    Published Judgement’s do not seem to deal with the point by point basis, as it was envisaged, although some court judgments feel it is not necessary to carry out such a task, is that right in these compelling matters? I would say that there could be many different approaches Judges could take with nothing else will do, however, I would say that those possible solutions should be across the board, we would not see the alphabetical list use all 26 letters, there are only so many possible permutations, would that form a simple tick box approach, maybe so, however, we would still see the in depth analysis rather than the “Old Etonian” ways in which judgments are continually produced.- “Homer nodded”

    In the case of Re. G, I think is another worthy contestant in this pool of perpetrators

    http://www.bailii.org/ew/cases/EWCA/Civ/2013/965.html

    The synopsis of that case could be melted down in to one paragraph,

    The Court of Appeal counselled against the adoption of a linear process when performing welfare evaluations in care proceedings. Rather than viewing each option in isolation and rejecting them one by one until only one is left standing, the Court of Appeal urged a more Global Holistic approach. Further in relation to proportionality, it counselled against an approach that paid only “lip service” to that principle. There needs to be a substantive consideration of what underpinned those expressions and the impact on the individual child. The Judge must actively evaluate “Proportionality” in every case by conducting a balancing exercise in which each available option is evaluated in a degree of detail necessary to analyse its own internal positives and negatives. An express choice should then be made applying the child’s welfare as a paramount consideration.”

    Within all the wranglings of judgment after judgment like we saw last year and this, each individual case adding further meat to the over loaded pie, has an official “test” actually been established, are we simply referring to past cases like Re. B and Re. B-S and making the shoe fit the foot, is there a need for the welfare check list to now be adapted to include Nothing Else Will Do.

    Heading back to where I should have been in this original posted case, I would reiterate in what I said in a previous response that opinions are just that, not fact, just a view, sometimes opinions can be wrong we are all fallible, with family cases one strong opinion drives the car to the beech along the way picks up many passengers.

    • Yes, making sense of the Court of Appeal’s take on both 26 weeks and adoption over the last year is a bit like trying to follow a series of Downton Abbey where someone has edited out half of the cast. You can TELL that there’s something else going on that you don’t know about, there simply must be to make any sense of it, but working out what it is is beyond me.

      I’ve read a LOT of the published judgments in the last year, around 80%, and if you laid them out next to the expectations of Re G and Re B-S, I think very few of them would even scrape over the line. Perhaps THAT is the deleted scene – that the Court of Appeal have realised that the expectations they set down are just not being matched and that they have had to dial down their expectations.

      If the initial B-S soundbite had been “If the Court is making a Placement Order, they must be satisfied that no less interventionist option would meet the child’s needs satisfactorily” then that would probably represent better what they are now saying – and it would have been fairly uncontroversial. The problem with soundbites, as we found out with Ryder J, is that people seize hold of them and run with them, so if you are giving out a soundbite test rather than a nuanced and lengthy test, you need to be damn sure that the words mean what they literally say.

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