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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


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



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]


About suesspiciousminds

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

11 responses

  1. Grrrr!

    Lost for commenting skills, brain says “Here We Go Again”, “how many times have you commented on these types of cases?”, -Brain slammed door shut in utter defiance-Brain knows I will be too cynical here!

    Okay maybe this will make “The Penny Drop” an Expert suggests that their opinion is that it would take 2 years or 18 months of therapy for the parent to be in any position to care again for their child, parent was fine until meeting the “Expert”

    Do these opinionated experts all read the same song sheet, here is why…

    Expert A says therapy, intense or other – two years, or until the end of time,
    Parent pops off to their GP with opinionated experts report in hand, GP is on the “WTF” fence and decides to help his patient.

    GP sends parent off into the wilderness of non NHS funded therapy with the local Mental Health Clinic – again with opinionated experts report in hand, the clinicians or consultant then sets about reading the report [despite the DPA and CA 89 breaches] the only way to gain therapy is by the professionals reading the first report from Expert A.

    Mental Health experts then decide, oh wait, we cannot give therapy on third hand information, we must carry out an assessment ourselves then we will see just what therapy is needed, if any.

    GP by this time is pacing up and down debating whether to jump off the “WTF” fence and demand to know why he was not included in the assumptions of the MH condition of his patient, he decides to let matter rest for now until a fuller assessment is produced by the professionals in the right filed.

    Professional assessment comes back in a complete contradiction to the first assessment how can that be, oh wait two ticks, Brain now knocking on door, slipped note under door and says “Remember further evidence case last week!”

    Indeed, so now, despite the “New assessment” and conclusions of the types of therapy or counselling the parent may need is still not supported by the NHS, off Parent pops to the quivering wreck of a GP who is dreaming of better days before Expert reports.

    GP reads the conclusions from the report and simply informs parent/patient sorry there is no therapy available, nothing can be done to help, mean while through discussions between GP and Patient, GP questions, a) is Expert A qualified in providing Therapy? b) the L.A requested the initial Expert supported by the Guardian or vis a vie agreements, why then don’t they provide a means to obtain Therapy, they are all too keen to have the “Expert” to assess the parent but forever more will not help or support parent in obtaining the desired outcome from the assessments.

    Throughout the ages onions, yes the vegetable that makes you cry is the same as an opinion they usually have many layers to them and getting to the core generally brings tears to the eyes of many.

    Just because a parent may or may not have a “Mental Illness” does that in turn make them a bad parent, Re. H last week says different, as does many other cases, the L.A should be willing to adapt their plans for the support they can help the family stay together

    Obviously the details of the Judgment does not give the intricate details of this particular case however it reads verbatim of many many others I have read over the last decade that reads the same.

    Two questions here. 1. why does it always seem to be 18 month to two years of therapy?
    2. why don’t the L.A provide resource for this therapy to be given, I may have already answered that above.

    Question 3, yeah I had an opinion that I only needed to ask two questions, go figure, Q3 Mr Sues, why would any child want to go to the deputy heads office for a fist fight with them over the Beatles, surely that was a bit harsh from the deputy head if he bopped you one!

    “Brain you can come in now!”

  2. Pingback: When can the court agree adoption is necessary? | Child Protection Resource

  3. I think Jerry is making a good point. He says that ‘therapy’ is not something and is instead nothing!

    In my mind this discussion raises more questions than answers. Who is qualified to say how long therapy will take? Is it ever possible to complete treatment? Or will there always be parts of the psyche that have been so damaged they will never recover?

    There seems to be a myth that ‘therapy’ changes people and makes them better parents but in reality it’s much more complicated than this.

  4. The problem seems to be that, within adult mental health services and, to some extent Child and Family mental health services, the purpose of ‘therapy’ is not to change the person in order to meet a criteria which might satisfy child protection services that the parent is now ‘safe’ and able to offer ‘good enough parenting’. In theory the purpose of offering assessment is to be clear what the person would most benefit from (and it is difficult to have that ‘decided’ by an alternative expert without checking it out as a treating clinician) and the purpose of ‘treatment’ is to work on the person’s psychological distress, whether that be getting rid of ‘symptoms’ so they feel better or, helping them understand how they got to having the experiences that cause them distress in the first place (which I suppose you could call ‘insight’) and helping them decide for themselves how they want to change. Unless you are working within forensic mental health services under the auspices of a relevant Section, where reducing the person’s risk to themselves or others is a key factor in them getting off that section and out (and in those circumstances, the assessment and treatment is intensive and long term, and involved a multi-disciplinary team – about a million miles from the services offered to parents and families in a child protection arena), then mental health services are not designed to ‘change’ people to meet a required standard in a particular time frame

    In reality, NHS mental health services are bottom of the funding heap, and CAMHS even more so, and so of course they have to put in ridiculously rigid and strict criteria which in effect squeeze out any but those with ‘severe and enduring mental illness’. This government has decimated Legal Aid and so it should come as no surprise that NHS mental health services are also in a terrible state and that they are concentrating on the core functions which have been decided to be only treating the acutely or severely ‘ill’.

    I am quite sure there are plenty of Psychologists, Psychiatrists and ‘therapists’ out there, with years of experience working with parents and families with complex and long-term problems who represent the revolving door clients of the child protection system, who would be delighted to work as part of a multi-agency team to offer an assessment and therapy service which is properly designed, evaluated and targeted at the specific needs of this client group. I expect it would even work, as the evaluation of the pilots on delivering expert witness services in a multi-disciplinary team in 2011 indicated.

    In England and Wales, it would appear that many Local Authorities operate a child protection framework that often has not a single professional trained in mental health (adult or child) as part of it, and honestly believe that you can simply bring in an outside ‘expert’ (as cheaply as possible without even knowing fully what specific type of training the expert should have to do the assessment asked of them) to give an ‘opinion’ on whether a parent in Proceedings can be transformed into a ‘good enough parent’ within 26 weeks and to comment on what techniques should be used to effect this change and how the transformation can be ‘proved’ without doubt to the Court, to have occurred and to be ‘robust’. And, while you are at it, make sure that whatever is recommended is available on the NHS and that the parent is jumped to the front of the queue because the case has to be finished in 26 weeks.

    Given that other aspects of the legal system dealing with adults with mental health issues who offend or young offenders operate without exception, in a multi-agency context, and psychological and psychiatric assessment and treatment (as well as family therapy interventions and a whole range of other therapeutic approaches) are an integral part of the team and available at a preventative stage as well as more intensively for those with more serious or long term problems – why should the child protection system be any different? Many of your families and children have complicated, long-term problems which are not much different to those found in other parts of the mental health system – yet they get the least access to trained mental health professionals, no statutory specialised multi-agency treatment services and those mental health professionals who do work in this arena (typically as expert witnesses) are often treated as though they are deliberately setting out to annoy and frustrate the legal profession by not answering the ‘questions’ in a clear and precise manner, with firm timescales attached – when this is not the reality of how mental health ‘treatment’ or therapy works and it represents a gross oversimplification of how people change, why people change and why for some people change ‘sticks’ and for others it doesn’t.

    Set up some decent joint agency (including mental health – not just social workers and lawyers) statutory assessment and treatment services nationally, decide at Pre-Proceedings (if not sooner) which families meet the criteria for inclusion (ideally a large proportion), get a comprehensive assessment and ideally a trial of treatment at pre-proceedings – and get health and LA to joint fund targeted therapeutic services staffed by mental health professionals and social workers who have specific and additional training in working with families (parents and children) with the presenting problems so that families who are seen to be likely to benefit from treatment can go quickly into a purpose built service – that would at least be a start.

  5. stella aka toni macleod

    given i had my pta on Re Tj refused yesterday and its Re Tjs birthday today i cant promise my comment will be coherent nor understood by anyone else but ….

    my personal care proceedings therapy goes as follows :-

    2011 expert shrink does report stating i have no mental health nor personality disorders however recommends a parenting course that doesnt exist i undertake a sure start parenting course and get commended for advising parents better than the course organizers (joy of being pre qualified in cache child care early years and education health and social care and child care certificate having worked at a nursery and studying stupidly to become a social worker previously ironic i know ! (we’ll never mention that idiotic misguided dream again)

    2012 two other expert reports are undertaken

    1st one psychologist says im so traumatised from the removal of my kids i shouldnt be given them back until i can cope with having my children removed (backward logic i know!) however doesnt diagnose any mental health or personality disorders no advised therapy is undertaken as no GP nor psychologist nor anyone else has even heard of the therapy let alone can do it and the psychologist shockingly gets sacked for writing the first report in which she advised child should be returned then the second report saying i am so traumatised is used she still commends my care of my kids

    2nd shrink expert states i have a personality disorder then when it gets to court refuses to take part n says he was FORCED UNDER DURESS to write the negative report he doesnt stand by it and will not take part in any court proceedings its withdrawn never to be mentioned again

    2014 another psychologist is instructed saying my care of not only my kids but also additional kids is good and i cope better with children around than when they are not around advises i have no personality disorders nor mental health however does say i have PTSD from the actions past and present of the LA and from care proceedings advises 30 weekly sessions of therapy at £100 a time judge forces LA to pay for it and travel so its costing them £150 per week to fund this THERE NOT HAPPY TO SAY THE LEAST we spend the weekly sessions discussing her holidays to france how she thinks drunk ppl are better than sober ppl when shopping her son gardening how she thinks the social worker is a bit of an ass how my shoe addiction collection are gorgeous and she has a pair of £300 pair of shoes she just takes out looks at them and puts them back and how coz she hasnt had a light in her fridge for so long now her new fridge has arrived she stands n just opens n shuts the door sex fetishes and many other random topics (yeah im still at a loss as how that deals with ptsd !?) she does however write to the court highly commend my engagement and states ‘therapy’ is going well so she can have as many random topics as she wants lmao

    at the end of 2014 proceedings when i remain with no personality disorders nor mental health issues solely PTSD which is having ‘therapy’ and doesnt effect my care whatsoever and the therapist commended therapy is going well engagement and commitment is second to none positive change is evident and progressing well the LA state therapy wont work and judge agrees when im over half way through it therapy payments are withdrawn and child removed permanently ironically i only had 12 sessions to go …….

    personally i think its all a money making scheme iv had NHS and SS reports and although the SS reports spout a whole world of S**t they never make a diagnosis (on me anyway) nor do the NHS ones and if therapy by SS experts are filled with sessions i undertook no wonder the judges state therapy wont succeed because in fairness even i agree they wont work

    in my experience ss only go for mental health when they have nothing else solid to use and are consistently used in ‘future emotional harm’ cases as a ‘look we got summit to back our BS’

    id be amused to see a court system that stated only NHS assessments could be used where the background information is not allowed to be from ss as how can an assessment be a true reflection of a parents mental health when its filled with lies

    for example if the ss say a parent has hit their child and the parent says they havent the parent is then delusional and lacks insight but if it is later proved that the parent hasnt hit the child those comments stick despite the reasoning behind the comments being fraudulent surely lazerth estates and lord denning’s comments in regard to fraud upon the court should echo in ppls minds !?

    hoping any of that makes sense lmao !

    stella xx

  6. Reblogged this on | truthaholics and commented:
    Permitting a frenzy of manufacturing risk is unreasonable, unnecessary, not to mention disproportional and dysfunctional because wag the dog leads to the emperor’s new clothes which is another insult to the taxpayer in increasingly straitened times.

    The disproportional weirdness of forcible family separation in UK public family law has hinged on the growth of essentially JUNK science also known anachronistically as ‘expert psychiatric reports’ over at least the past decade which in fact are anything but and fail to withstand any objective scrutiny especially in the cold light of day in the real world and community where the families concerned live and ultimately, die.

    The dodgy practice of inferring hype from a parallel universe in order to infect care proceedings to simply prevent the return of removed children back home should be abolished forthwith by statute because it is fundamentally incompatible with any reading of the less-interventionist principle underpinning the Children Act itself.

    The GP is and should remain the first port of call for any and all health issues for families including mental health who can properly advise on apt holistic treatment instead of a deliberately fragmentary approach deployed by self-serving practitioners in order to perpetuate a child protection racket.

    This has created the appearance as well as existence of collusion which serves to corrupt justice under normal rules of admissibility of evidence. It corrupts the course of justice as well. Prolonging the misery of traumatised children and their parents under false pretences is WRONG. This sacred cow has got so fat it’s now practically begging to be slaughtered.

  7. On collusion, I can’t wait for comments on this Appeal Court hearing:

    Jean Robinson, President, Association for Improvements in the Maternity Services

    • Hi Jean,

      My first comment is that the poor social work practice in this case was totally unacceptable. However, the fact that the mother had already lost the care of seven older children made me think that this case would have presented serious dilemmas for any social worker.

      I think the growing number of recurrent care proceedings in recent years is a serious problem for society. Apart from the ethical issues there are the challenges for the social work profession in training and supporting those who have to make very difficult judgements about people’s parenting abilities. My views on this are based on my own experience of doing child protection work and can be seen at:

      What Should be Done about Irresponsible Mothers?

    • Re NL is quite an old one – but an important one – it was what ended the practice of advocates drafting reasons for magistrates (long overdue, in my humble opinion, although the practical effect is much more time spent waiting at Court, and reasons that aren’t as tight as they used to be )

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