This was a Court of Appeal case decided today. It has taken a LOT of chewing over to make sense of it. I’m still not quite sure that I get it.
Re W (A child) 2016
A, a young girl, was born on 1st May 2014. Care proceedings took place and on 21st October 2014 a Care Order and Placement Order were made. A was placed with prospective adopters, Mr and Mrs X in December 2014. An adoption application was lodged by Mr and Mrs X on 1st April 2015.
In June 2015, the parents went on to have another child, J, and in those care proceedings, the paternal grandparents were approached and wanted to care for J. This was the first time that they learned of A’s existence. They wanted to also care for A.
They made an application for leave to oppose the adoption (which was wrong in law, but understandable – only parents can apply for that) and for a Child Arrangements Order for A to come and life with them. [Yet another child K was born in April 2016 and K was placed with paternal grandparents and J]
The case came before Bodey J in April 2016. He dismissed the adoption application and made a Special Guardianship Order to the paternal grandparents. Mr and Mrs X appealed.
A powerful comment
This is not legally significant, but it was very punchy and wise, from Jackson LJ
- As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:
i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or
ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?
- If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.
- I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.
- I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.
- The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.
Powerful stuff. I hope that heed is taken of it.
Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much. So HOORAY for this
This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have ” a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.
Issues for the appeal
a) The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;
b) The application of the Supreme Court judgment in Re B  UKSC 33 (“nothing else will do”) in that context;
c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;
d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.
I think most of us thought that with the President’s clarification in Re R, we were pretty much done with ‘nothing else will do’ (don’t take the soundbite literally, use the entireity of Lady Hale’s formulation, it is about realistic alternative options not fanciful ones). But the Court of Appeal have grabbed hold of a can opener and opened about a dozen cans that were labelled “WORMS, Do not open”
The Court of Appeal were very very critical of the ISW and the Guardian (chiefly the Guardian) who they felt had got the law seriously wrong. Their mistake as to the law meant that their recommendations and conclusions were so flawed that the Judge’s reliance on them made the judgment flawed and the appeal succeed. So what did they get wrong?
All of them had approached the case in this way :-
A) This is an adoption application
B) The grandparents are a realistic option to care for A – they are caring for two siblings and doing a good job
C) There is nothing to rule them out as a carer for A
D) To make the adoption order, the Court must be satisfied that “nothing else will do”
E) Unless the risks of moving A are too great, she should be moved
I have to say, that this is exactly the way that I think almost every social worker, Guardian and lawyer in the country would have approached matters. And candidly, how I would have approached it too. Of course look at the risks in E and weigh them up very carefully, but the starting point is that this is only a “nothing else will do” case and thus an adoption order case IF those risks mean that a placement with grandparents is not a realistic option. The starting point is surely that the child should be placed within the birth family if possible. (That’s exactly the way that Bodey J – one of the smartest men I’ve ever been in a room with – looked at it as well)
The Court of Appeal ire was particularly drawn by the word ‘right’ in the evidence of those professionals. [Of course what a professional means by ‘right’ does not necessarily mean the same as what a lawyer means – but in any event, the article 8 right to family life seems rather to encompass that the child has a right to the family life that they were born into and should only be deprived of that where it is proportionate and necessary – hence Y v UK, hence Re B, hence Re B-S, so I’d have said there was a legal right as well as the context that social workers and Guardians would have been using the term – a moral right rather than a legal one. If you had to have lived with a person to acquire a family life with them, there’d be no article 8 rights in cases where the child was removed at birth, and that’s just not the way the Court approaches such cases]
So these are the critical passages. They need a LOT of careful reading
“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. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S  EWCA Civ 1146, Re R  EWCA Civ 715 and other cases).
- Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.
Natural family presumption/right
- With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.
- The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child)  EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:
’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).
94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. 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.‘
[As a sidebar, I think that particular point rather slid by, and the thrust of it is that threshold is extraordinarily important. Once threshold is crossed, the Court does not have a presumption that the child ought to be placed within the natural family – it is a straight welfare test. My forecast is that disputes about threshold will probably increase once practitioners grasp the full import of that]
- In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.
- It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.
- The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.
- 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.
The problem with that formulation, of course, is that ‘necessary’ in the context of Adoption, means “nothing else will do” or to put it fully from Re B “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. ” . It is almost impossible to read that in any way other than there being a presumption that the child should be brought up within the birth family – a rebuttable presumption, but a presumption. If there’s not that overriding requirement, the child would be with the birth family.
One might say, ah well that’s applicable when the Court are considering making the Placement Order, but once one is made, then the presumption or right or starting point is dislodged – the Court have already decided that there is such an overriding requirement when they MADE the Placement Order, so it doesn’t need to be found again. However, the Court of Appeal expressly said in Re B-S that when considering an application for leave to oppose an adoption order, and the making of an adoption order, the Re B test still applies, notwithstanding that the Court earlier made a Placement Order. Para 74 iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.
After a LOT of chewing, I think the critical passage to understand is the last one, and thank Heaven for Mr Feehan QC putting it in a way that one can understand.
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.
At the time that a Placement Order application is being considered then, there is a leaning towards placement within the birth family (not a right, or presumption) – but all things being equal, the scales will tip that way. However, AFTER a Placement Order has been made and the child is placed with prospective adopters
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.
So in a post placement case, the issue becomes that of welfare of the child with both sides to be weighed in the balance. (I don’t really know where that leaves the Re B-S pronouncement that post Placement Order, “nothing else will do” applies to making of the Adoption Order. .. Possibly the last sentence of Re B-S para 74 iii) “That said, the child’s welfare is paramount” is doing an awful lot of heavy lifting – meaning that EVEN where there re no overriding requirements for the child’s welfare to be brought up outwith the birth family a simple ‘better for the child’s welfare’ can still make adoption possible. Man, that’s a LOT of weight to carry.)
The Court of Appeal also looked at the article 8 issues
- The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
- If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.
[If the grandparents were not caring for A’s two siblings, I think that I would probably agree. But that’s a magnetic fact that I think does give A some article 8 family life with the grandparents as a family unit , despite never having met them or lived with them. Those are two full siblings, whom she might be placed with, or might grow up a stranger from. I’d give that some weight, myself]
So the upshot for this case is that there will be a re-hearing, and of course, the impact on A of moving her only becomes greater with the passage of time. I hope that all involved are looking at the words of Jackson LJ, because that seems to me to represent the best hope for the long-term future of this case.
And get ready for appeal after appeal as to presumptions and rights, and where exactly on the balancing scales Mr Feehan QC’s fulcrum should be in any case. The obvious immediate line of appeals will be the 11th hour relatives, who at the moment, if viable, force an adjournment for full assessment if the alternative is adoption because how are the Court to exclude them as a realistic option and thus be able to say that there are overriding requirements for the child’s welfare which warrant adoption?
The one thing that we REALLY didn’t need with adoption law was more complexity and more uncertainty and we’ve just been handed both.