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I come not to praise “nothing else will do” but to bury it

 

I think one could safely say that five Court of Appeal decisions in five weeks whose thrust is “don’t come wingeing to us about nothing else will do” counts as a hint being heavily dropped, much like my own heavy-handed hints that a Darcey Bussell calendar would hit the spot over this festive period.

 

Hints, of course, are not always taken.

 

[I know of more forthcoming decisions from the Court of Appeal, and I suspect there will be a few working their way through the system before Counsel for the appellant makes a difficult telephone call saying “we’re doomed, we need to drop this”]

 

Re T (Children ) (Rev 1) 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1549.html

 

The original case had involved 6 children, the youngest two being made subject to Placement Orders, and the older four being made subject to Supervision Orders and placed with their father.

 

The mother’s appeal was largely based on a claim that the Judge had failed to properly analyse whether adoption was proportionate and that “nothing else will do” and whether a placement with her instead might have met the children’s needs.

 

Reading between the lines on this one, mother’s counsel was put through the wringer by the Court of Appeal who have a somewhat different approach to that taken earlier in the year and last autumn.

Ms O’ Leary concedes, without hesitation, that :

i) HHJ Waller is a well known and experienced family judge who gave a long, carefully considered and thorough judgment having seen and heard the parties give evidence.ii) The Social work report was ‘exemplary’ including the way in which it dealt with the question of future placement alternatives for the children in a balance sheet form. The social worker gave evidence and the judge undoubtedly had in mind the totality of her evidence.

iii) The authors of the FAST assessment report were not required by the mother to give evidence. It was conceded on behalf of the mother that the authors of that assessment would have been the people through whom to challenge the assessment generally, or to put a case that the mother could cope with two children if not with six.

iv) The judge had not been asked to consider the return of the two youngest children; the mother’s case had been unclear, but at trial she had been seeking the return of at least three of the children (including J and O).

v) The judge not only expressed his understanding that adoption is an order of “last resort” [48] but expressed on a human level, that “it is with great reluctance and after careful consideration” [265], that he reached the decision to grant the care and placement orders.

 

The issue of interest in this appeal, other than it being yet more bolstering of an argument that appeals based solely on “nothing else will do” are not going to be cutting much mustard anymore, is that the judgment at first instance did not contain a single section in which all of the analysis and proportionality assessment was self-contained, but the Court of Appeal ruled definitively that if this material was threaded through the judgment as a whole, that was sufficient.

 

  1. The judge recognising that the care plan of the local authority was one of adoption thereafter asked himself the right question namely whether “the permanent separation from the natural family and relatives and the severance of legal ties, is necessary or whether there is any other realistic option” [277].
  2. Whilst not corralled in one section of the judge’s judgment, the positives and negatives of both rehabilitation and of adoption are threaded through the judgment; they are no less a part of the Re BS exercise for that. The judge as he was entitled to do, answered the question he had posed and decided, on the facts and in the light of his careful welfare analysis, that the children’s future welfare could not be safeguarded with the mother and therefore other alternatives had to be considered.
  3. In this case it was accepted that given the ages of the children and the absence of any family members to care for them, adoption was the only realistic alternative to rehabilitation. Where the judge had only two options available to him his decision making process is not rendered “linear” simply by virtue of his conclusion that rehabilitation is not in the best interests of the children, so leaving adoption as the only realistic option for the children concerned. The “holistic” consideration to be applied in applications for adoption had been implicitly, if not explicitly, conducted through the careful weighing up of the benefits for and against rehabilitation and for and against adoption which are found within the body of the judgment.

 

 

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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. It is a monumental jurisprudential mistake for the courts to retreat from what could, and should, have been a “gold standard” test for care proceedings – it simply means that Local Authorities have been given carte blanche to continue taking children into care on the basis of “sloppy reasoning”. Tragic!

    • Ashamed to be British

      100% agree.
      If we give up on ‘nothing else will do’ we may as well have social workers stationed at maternity wards and hand the baby over on the way out.
      I remain hopeful that this is a glitch and many more judges than not, will allow appellants to continue to bring forward this case law and consider it carefully … in the interest of equality and diversity

      • I think we would now be waiting for either a case to go to Europe or back to the Supreme Court – the Court of Appeal have done with “nothing else will do” as a test. (which doesn’t mean that they won’t hear and grant appeals that are based on the decision not being properly reasoned or proportionate, just that it isn’t literally “nothing else will do”)

      • (And I suspect we may be hearing wails of “why wasn’t there a social worker at the hospital to stop this mother taking the baby out of the maternity ward” in the next few days / weeks on the Bristol case. Two wrongs don’t make a right, but the stakes for getting these things wrong can be very high)

      • Ashamed to be British

        Already been hearing it, I have my suspicions that they were and that’s exactly why she did what she did, we will see, the truth will come out

  2. stella aka toni macleod

    • RE W [1993] 2FLR 625) ‘the local authority’s duty should be to support and eventually reunite the family unless the risks are so high that the child’s welfare requires alternative provision’

    • RE KD (a minor ward) (termination of access) [1988] 1AC806, at page 812 said this: “The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.”

    • K and T v Finland [2001] 2 flr 707 and Re C and B (care order: future harm) [2001[ 1 flr 611 carried the principle that wherever possible children should be brought up within their natural family and in particular by their birth parents and that where families are separated by court orders public authorities including local authorities and the courts are under an obligation to take measures to facilitate family reunification as soon as reasonably feasible

    have all clearly been forgotten by the COA here 😦 and as for the Bristol case you could see that coming from a mile off and that it was a SS case shes a brave lady driven to the extreme to ensure she wasnt separated from her newborn baby 😥

    stella xx

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