Law for social workers (part 3)

This time I’m going to deal with Placement Orders and Adoption Orders – and largely of course what the Courts are looking for when deciding whether to approve a care plan of adoption rather than placement with a family member.

I expect to be changing this page a LOT.  Adoption law is changing faster at the moment than Justin Beiber’s views about Instagram.

Quick sidetrack. I like dinosaurs.

Of course I do. That’s surprised none of you, I suspect. I would actually go to a real world Jurassic Park if they built one. I would actually go to a real world Jurassic Park like the one in the last movie where 42% of the guests were eaten to bits. I wouldn’t care. Sign me up, I’m going. Every day I pass Thomson’s window and sigh that there’s still no Jurassic Park brochures.

One of the first dinosaurs found, in fossil form, was Iguanadon, which means “Iguana teeth”.  (and frankly, if I’d dug up something as epic as the first ever dinosaur, I wouldn’t have been naming it after a chuffing IGUANA. I would have gone for Dragon-stone or Me-Grimlock or something. Iguanadon was actually the second, after Megalosaurus – so it’s not like there wasn’t a prompt – Megalosaurus is a great name. Don’t then drop the ball with “Kittendon”  or “Daddylonglegosaur”)

When they found it, there was also a spike. So, reasonable assumption, they put the spike on its nose, like a rhino. And they put it on all fours, like a rhino.

 

Then fossil-hunters found a bunch of iguanadon fossils in Belgium, and the iguanadon idea got flipped turned upside down

 

Honestly – when you look at this thing, which incidentally was TEN METRES long, is the first thing that comes to mind “Oh, it’s teeth are quite like an Iguana’s teeth?” what the heck, Victorian Paleontologists?

Okay, so that’s all sorted out viz-a-viz Iguanadons.  Only NO!  It is now believed that whilst the spike things did indeed go on the thumbs and not the nose, that Iguanadon’s weren’t always walking around upright going “Hey!” and possibly “Sit on it”, but that they were largely on all fours but they could rear up on their hind legs when they felt the need. So three completely different ideas about the Iguanadon.

And that’s pretty much what’s happening with adoption. The Court of Appeal keep saying “Hey, I tell you where this spike belongs on adoption” and everyone has to react and nod and go “Ah, yeah, I thought that too” and then just when we all get used to it, they flip on us and go “sucker, you were a damn fool for thinking the spike was on the nose, it’s on the thumbs, dummy” and so forth.

 

Deep breath – putting this off now. Let’s get to it.

 

The Court can’t make a Placement Order unless the parent has consented OR the Court has decided to dispense with their consent. And the LA can’t place a child with prospective adopters with a view to a later adoption application without a Placement Order.  And the Court can only make a Placement Order if the LA apply, and the LA can only apply if their Agency Decision Maker (ADM) makes a decision that adoption should be the plan for the child.

The Adoption and Children Act 2002 uses pretty plain language.

 

52 Parental etc. consent

(1)The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a)the parent or guardian cannot be found or is incapable of giving consent, or

(b)the welfare of the child requires the consent to be dispensed with.

 

If we’re learning anything about the Courts over this three article series (and we may well be learning more about dinosaurs at this precise time) it is that plain language is like anti-matter to Courts. They don’t care for it at all, and will quickly try to eradicate the heck out of it by complicating it.

So, this is the truly astounding bit. Every piece of adoption caselaw in the last three years, that has turned everything upside down and made huge differences to outcomes to children in cases has been about the word ‘requires’ in that section.

You and I and Fonzie know what the word ‘requires’ means. We aren’t going to need to google it. But that’s not enough for the Courts. It took them a long time to get around to it, but they pimped that word up to a level where you’d no longer recognise the word they started with.

Let us begin with the Supreme Court and Re B 2013 .

 

http://www.familylawweek.co.uk/site.aspx?i=ed114409

This is the case that decided that when considering the application for a Placement Order and thus a plan of adoption, the Court had to be in a position to decide that “nothing else will do”

 

Proportionality
194. Once the threshold is crossed, section 1(1) of the Children Act requires that the welfare of the child be the court’s paramount consideration. In deciding what will best promote that welfare, the court is required to have regard to the “checklist” of factors in section 1(3). These include, at (g), the range of powers available to the court in the proceedings in question. By section 1(5), the court must not make any order unless it considers that doing so would be better for the child than making no order at all. The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.

195. It is well-established in the case law of the European Court of Human Rights that “the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by article 8 of the Convention” (Johansen v Norway (1996) 23 EHRR 33, among many others). However, such measures may be justified if aimed at protecting the “health or morals” and “the rights and freedoms” of children. But they must also be “necessary in a democratic society”. The court has recently summed up the principles in the context of an order freeing a child for adoption, in R and H v United Kingdom (2011) 54 EHRR 28, [2011] 2 FLR 1236, at para 81:

“In assessing whether the freeing order was a disproportionate interference with the applicants’ article 8 rights, the court must consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of article 8 of the Convention (see, among other authorities, K and T v Finland (2001) 36 EHRR 255, para 154). . . . The court would also recall that, while national authorities enjoy a wide margin of appreciation in deciding whether a child should be taken into care, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v Germany (2000) 34 EHRR 1412, para 49, and Kutzner v Germany (2002) 35 EHRR 653, para 67). For these reasons, measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child’s best interests (see Aune v Norway (Application No 52502/07) 28 October 2010, para 66; Johansen v Norway (1996) 23 EHRR 33, para 78; and, mutatis mutandis, P, C and S v United Kingdom (2002) 35 EHRR 31, para 118).”

196. The Strasbourg court itself has consistently applied a stricter standard of scrutiny to the national courts’ decisions to restrict or curtail contact between parent and child than it has to the decision to take a child into care in the first place. This is because, as stated, for example, by the Grand Chamber in K and T v Finland (2001) 36 EHRR 255, at para 178, there is:

“. . . the guiding principle whereby a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child.”

197. Thus it is not surprising that Lewison LJ was troubled by the proportionality of planning the most drastic interference possible, which is a closed adoption, in a case where the threshold had not been crossed in the most extreme way (see para 174 above). However, I would not see proportionality in such a linear fashion, as if the level of interference should be in direct proportion to the level of harm to the child. There are cases where the harm suffered or feared is very severe, but it would be disproportionate to sever or curtail the family ties because the authorities can protect the child in other ways. I recall, for example, a case where the mother was slowly starving her baby to death because she could not cope with the colostomy tube through which the baby had to be fed, but solutions were found which enabled the child to stay at home. Conversely, there may be cases where the level of harm is not so great, but there is no other way in which the child can be properly protected from it.

198. Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34,

“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”

 

[I cannot stress strongly enough to you that  “nothing else will do” is the spike here, in the Iguanodon metaphor.]

After that, came Re BS 2013, where the Court of Appeal tried to put some rigour into social work statements and judgments and to get professionals to engage with that philosophy set down by the Supreme Court in Re B.

 

http://www.familylawweek.co.uk/site.aspx?i=ed117048

 

Adoption – essentials: (i) proper evidence
34. First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:

“evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.”

The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:

“An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options”.

McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:

“the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family”.

We agree with all of this.

35. Too often this essential material is lacking. As Black LJ said in Re V (Children) [2013] EWCA Civ 913, para 88:

“I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering … It is not the first time that I have remarked on an absence of such material from the evidence, see Plymouth CC v G (children) [2010] EWCA Civ 1271. Care should always be taken to address this question specifically in the evidence/ reports and that this was not done here will not have assisted the judge in his determination of the issue.”

In the Plymouth case she had said this (para 47):

“In some respects the reports of the guardian and the social worker, and the social worker’s statement, are very detailed, giving information about health and likes and dislikes, wishes and feelings. However there is surprisingly little detail about the central issue of the type of placement that will best meet the children’s needs … In part, this may be an unfortunate by-product of the entirely proper use, by both witnesses, of the checklist of factors and, in the case of the social worker’s placement report, of the required pro forma. However, the court requires not only a list of the factors that are relevant to the central decision but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children, and a fully reasoned recommendation.”

36. Black LJ has not altered the views that she expressed on these earlier occasions and the other members of the court agree with every word of them. We draw attention in particular to the need for “analysis of the pros and cons” and a “fully reasoned recommendation”. These are essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met. We suggest that such an analysis is likely to be facilitated by the use – which we encourage – of the kind of ‘balance sheet’ first recommended by Thorpe LJ, albeit in a very different context, in Re A (Male Sterilisation) [2000] 1 FLR 549, 560.

37. It is particularly disheartening that Black LJ’s words three years ago in the Plymouth case seem to have had so little effect.

38. Consider the lamentable state of affairs described by Ryder LJ in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, where an appeal against the making of a care order with a plan for adoption was successful because neither the evidence nor the judge’s reasoning was adequate to support the order. It is a lengthy passage but it merits setting out almost in full (paras 22-26):

“22 … what was the evidence that was available to the judge to support her conclusion? … Sadly, there was little or no evidence about the relative merits of the placement options nor any evidence about why an adoptive placement was necessary or feasible.

23  The allocated social worker in her written statement recommended that [S] needed:

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

24  With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

25  The independent social worker did not support adoption or removal but did describe the options which were before the court when the mediation opportunity was allowed:

“Special Guardianship Order: This is the application before the Court and which would afford [S] stability, in terms of remaining with the same primary carer and the opportunity to be raised within her birth family. I do not consider that the situation within the family is suitable at present for this Order to be made.

Adoption: [S] could be placed with a family where she should experience stability and security without conflict. This may be the best option for [S] if current concerns cannot be resolved in a timely manner.”

26  In order to choose between the options the judge needed evidence which was not provided. The judge’s conclusion was a choice of one option over another that was neither reasoned nor evidenced within the proceedings. That vitiated her evaluative judgment which was accordingly wrong.”

39. Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

40. This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

Adoption – essentials: (ii) adequately reasoned judgments
41. The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

42. The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

43. In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

We need not quote the next paragraph in McFarlane LJ’s judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

44. We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

45. McFarlane LJ added this important observation (para 53) which we respectfully endorse:

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

46. We make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance in what are amongst the most significant and difficult cases that family judges ever have to decide. Too often they are given scant attention or afforded little more than lip service. And they are important in setting the context against which we have to determine the specific question we have to decide in relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.

Adoption – the current reforms to the family justice system
47. First, however, we need to see how all this fits in with the current reforms to the family justice system and, in particular, with the revised Public Law Outline.

48. Our emphasis on the need for proper analysis, argument, assessment and reasoning accords entirely with a central part of the reforms. In his ‘View from the President’s Chambers’ the President has repeatedly stressed the need for local authority evidence to be more focused than hitherto on assessment and analysis rather than on history and narrative, and likewise for expert reports to be more focused on analysis and opinion: see ‘The process of reform: the revised PLO and the local authority’, [2013] Fam Law 680, and ‘The process of reform: expert evidence’, [2103] Fam Law 816. What the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in play in the particular case, which analyses all the possible options, and which provides clear conclusions and recommendations adequately reasoned through and based on the evidence.

49. We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.

Following the one-two punch of Re B and Re B-S,  “nothing else will do” became a mantra, a yardstick, a soundbite that was taken literally. The Court of Appeal did not help in this regard, because for about 15 months, they granted just about every appeal against a Placement Order – including at its low-point an appeal where a Judge had made a Placement Order where both parents had been recently sentenced to prison but hadn’t explained specifically in his judgment why “nothing else will do”

At this point, the spike is firmly on the nose.

We then have a shift.  The Court of Appeal had started to get cold feet about the bare mantra “nothing else will do”  – they were drowning in appeals, nobody seemed to know how to produce the judgments that would satisfy them and make a decision bullet-proof and the adoption statistics were utterly tanking, leading to Government raised eyebrows and hand-wringing in the Press.  A few cases had started to say “oh, you’re not supposed to mean ‘nothing else will do’ literally”

Re R 2014

http://www.familylawweek.co.uk/site.aspx?i=ed138081

 

50. The fundamental principle, as explained in Re B, is, and remains, that, where there is opposition from the parent(s), the making of a care order with a plan for adoption, or of a placement order, is permissible only where, in the context of the child’s welfare, “nothing else will do”. As Baroness Hale of Richmond said in Re B, para 198:

“the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”

She reiterated the point, para 215:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:

“family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained.”

In essence, the Court do have to apply the whole of Baroness Hale’s fomulation, not just the easily remembered soundbite element.

But the Court is looking at all of the REALISTIC alternatives to adoption and analysing them, not every single fanciful possibility and having to rule out everything.

52. At the end of the day, of course, the court’s paramount consideration, in accordance with section 1(2) of the 2002 Act, is the child’s welfare “throughout his life.” In this regard I should refer to what Macur LJ said in Re M-H, para 8, words with which I respectfully agree:

“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.”

53. Likewise of importance is what Black LJ said in Re M, paras 31-32:

“31 … 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.”

54. I repeat and emphasise: At the end of the day, the court’s paramount consideration, now as before, is the child’s welfare “throughout his life.” 

58. The nature of that exercise has been helpfully illuminated by Ryder LJ in CM, para 33. Put more shortly, by Ryder LJ himself, in Re Y, para 24:

“The process of deductive reasoning involves the identification of whether there are realistic options to be compared.  If there are, a welfare evaluation is required.  That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors.  The court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified.”

I respectfully agree with that, so long as it is always remembered that, in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B, paras 198, 215.

59. I emphasise the words “realistically” (as used in Re B-S in the phrase “options which are realistically possible”) and “realistic” (as used by Ryder LJ in the phrase “realistic options”). This is fundamental. Re B-S does not require the further forensic pursuit of options which, having been properly evaluated, typically at an early stage in the proceedings, can legitimately be discarded as not being realistic. Re B-S does not require that every conceivable option on the spectrum that runs between ‘no order’ and ‘adoption’ has to be canvassed and bottomed out with reasons in the evidence and judgment in every single case. Full consideration is required only with respect to those options which are “realistically possible”.

60. As Pauffley J said in Re LRP (A Child) (Care Proceedings: Placement Order) [2013] EWHC 3974 (Fam), para 40, “the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched.” And, to the same effect, Baker J in Re HA (A Child) [2013] EWHC 3634 (Fam), para 28:

“rigorous analysis and comparison of the realistic options for the child’s future … does not require a court in every case to set out in tabular format the arguments for and against every conceivable option. Such a course would tend to obscure, rather than enlighten, the reasoning process.”

“Nothing else will do” does not mean that “everything else” has to be considered.

61. What is meant by “realistic”? I agree with what Ryder LJ said in Re Y, para 28:

“Realistic is an ordinary English word. It needs no definition or analysis to be applied to the identification of options in a case.”

(Bearing in mind that we spent two years bickering about what ‘requires’ means, it still amuses me that the President confidently asserted that we need no definition of the word ‘realistic’)

And the key punchy bit, where the spike was well and truly installed on the thumb of adoption and we were told that adoption stands on two legs

44. I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.

We all understood adoption now. It has spiked thumbs, and stands on two legs.  You need to apply the WHOLE of Baroness Hale’s formulation

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

Not just the easy to recall last bit.

We now have Re W 2016

It’s really tricky to explain, but this was my attempt at it

Re W – no presumption for a child to be brought up by a member of the natural family

In a soundbite (because that’s NEVER led us into any trouble in family law)

There’s not a LEGAL PRESUMPTION that a child is better off with the birth parents or within the birth family, not even what’s called a REBUTTABLE PRESUMPTION  (i.e “you start with the idea that the child should be with the family, but if the LA can prove that this is harmful, they have rebutted that presumption”)

There is no RIGHT for the child to grow up within the birth family.

If you’re thinking that all of that just flies in the face of everything you just read, that’s why it is a judgment whose implications have not yet been established.

It MIGHT apply solely to cases like the facts of Re W itself – prospective adopters v birth family, and the Court saying that it is a straight welfare shoot out. It MIGHT not.

There are three really big paragraphs in the judgment

1. Plunging a stake into the heart of nothing else will do

 

• Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare.

2. Once threshold is crossed, decisions about the child are on straight welfare  and proportionality grounds (not any presumption or right or duty)

As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.‘

3. There’s however, some sort of credit for parents BEFORE placement orders

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

If you can’t quite understand what the difference is between a fulcrum that is placed so as to reflect weight being afforded to any viable natural family placement and a presumption, you’re not alone. I haven’t yet met anyone that understands this.  I suspect that I am going to see the word ‘fulcrum’ in dozens of law reports until someone explains that actually, the spike is underneath the Iguanadon’s chin, and that it was used to pick up litter because Iguanadon was really a pre-historic womble.

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

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