We know that there is one coming, because the President told The Times (sadly behind a paywall) that there would be one coming out this week in which the Court of Appeal would clarify Re B-S. The Times article is in the context of the “crisis” in the lower adoption figures – that “crisis” is itself in the context of adoption figures having gone up 26%.
The Times, you may be aware has moved from the Camilla Cavendish line of secret oppressive family Courts into pro-adoption.
We will have to wait and see what the President says. I suspect the direction of travel can be read from recent Court of Appeal judgments – my guess would be that all of the rigorous demands on social work evidence and a comparison of all of the various options will remain. But that there will be clarification that Re B-S never intended to raise the bar or heighten the legal test.
The language in the Times piece talks about Courts being satisified that adoption is “the best option” which is quite a distance from “last resort” never mind “nothing else will do”
If Re B-S was being misunderstood, it seems odd that it has taken a year and a half for the President to speak out. He sits in the Court of Appeal, he has brother and sister Judges routinely hearing appeals, he gives speeches and judgments all the time, he has his View from the President’s Office, all of which have been silent.
The closest we have come until now, was this Press Conference in April 2014
Philip Hoult from Local Government Lawyer. The question I have is recent rulings on adoption from the judiciary implies that what’s said, from the steer, that adoption should be a last resort where nothing else will do. The government is saying to councils, “We want you to place more children for adoption,” and they’re threatening to remove local authority powers if they fail to do so. Do you have any advice for councils in that situation?
JM: Well, I stopped giving advice when I left the bar 14 years ago. All I would say is that it is the Supreme Court, very recently in a case called “Re: B” which used the phrases which you’ve just mentioned. Last resort and so on and so forth. Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the judges to decide what the statute means. The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so. I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in “Re: B” in I think the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year, the tension being that whereas the Supreme Court said that adoption is the last resort, the Government, as I recall in the guidance it gave, said that local authorities should get away from the idea that adoption is the last resort. So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if the Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law. In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.
It does seem to me that the President is explicit there – there was a tension between what the Courts were saying in Re B and Re B-S and the pro-adoption policies of the Government. And the President was explicit – if the Government disagree with the judicial line, they must change the law.
So will the President hold firm, or is there a change coming? (I know where my money is going. I suspect we are about to learn that we have always been at war with Eurasia)
I can’t cut and paste in the entireity of the Times piece, due to copyright issues, but if this bit is accurate, it really troubles me
Officials in the Department for Education made a series of pleading phone calls to heads of local authority children’s services departments telling them that the judge’s intervention had been misinterpreted.
Perhaps that isn’t right. But if it is, is that the way for judgments to be interpreted? Is that the way for Government to approach judgments that they don’t like? *
*( well, given that the Lord Chancellor just lost the book ban judicial review, but isn’t reversing the policy until after Christmas to stop prisoners getting books as presents for Christmas, maybe it is)