The Court of Appeal decision in Re BS (Children) 2013 is out
This case involved an appeal against a decision to refuse leave for a parent to oppose an adoption application, a Placement Order having already been made. Prior to Re B, this would have been an appeal unlikely to have been given permission, let alone succeed. The law on the test for leave to oppose an adoption application is well-established, and is plainly a very high test for the parent to satisfy. (Some might possibly argue that the existing case law sets a test that is nigh on insurmountable)
The Court of Appeal however, set out the wider context of an appeal dealing with adoption post Re B, and the general mood music of the higher courts in recent days that not sufficient attention is being given to what a serious and grave order a Placement Order or adoption order is.
Adoption – the wider context
· Lurking behind the present case, and indeed a number of other recent cases before appellate courts which we refer to below, one can sense serious concerns and misgivings about how courts are approaching cases of what for convenience we call ‘non-consensual’ as contrasted with ‘consensual adoption’; that is, cases where a placement order or adoption order is made without parental consent. Most frequently, parental consent is dispensed with in accordance with section 52(1)(b), on the footing that the welfare of the child requires the consent to be dispensed with. But we must not forget the not inconsiderable number of cases where parental consent is dispensed with because the parent lacks capacity.
· We – all of us – share these concerns.
The Court of Appeal go on to set out the law as refreshed and refined by Re B, that adoption is the last resort and that it can only be the plan where “nothing else will do”
But this is new , though using Lady Hale’s judgment in Re B as a beginning:-
29 It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.
Hmmm. That seems sensible on the face of it, but of course a Local Authority could manage any risk at all whilst keeping the family together, if they kept the family together in a residential assessment centre permanently, or they had the family living at home with 18 hours a day visiting from professionals. So clearly there has to come a point in which resources play a part. It would not be reasonable for a Local Authority to spend millions on one family, probably not reasonable for them to spend half a million on one family, just to keep them together. The crunch therefore comes at where what a parent and Court consider to be reasonable allocation of resources to keep a family together clashes with what the Local Authority consider reasonable.
It seems not quite right to me to suggest that the LA cannot run such an argument – of course, the Court must have the ability to reject it and tell the Local Authority that their plan is refused, to make a less interventionist order and that the LA then have to make the best of it. But this formulation rather suggests that the Court can dictate the plan of support in the community.
I am struggling to fathom why a Local Authority should not press for adoption where they are unable or unwilling to support another form of order – surely that is the exact situation in which they would. The Local Authority can’t seek a Placement Order UNLESS they are satisfied that nothing else will do.
In layman’s terms, what this really means is that if the Court is faced with a plan that allows the family to be together, the LA cannot oppose that plan on the basis that the resources required to make the plan work would be unreasonable. That is a major development.
It seems to me that this would hold up for reasonable resource expenditure, but particularly in times of austerity, I suspect that Local Authorities won’t be quietly taking the “blank cheque” approach hinted at here. I also suspect that Barry comes into play in any later challenge.
Moving on, the Court of Appeal gave guidance about the evidential requirements for the Court to make a Placement Order and endorse a plan of adoption. It is fair to say that the Court of Appeal hint that Courts have become too lax, and too reliant on stock phrases and formulas
Adoption – essentials: (i) proper evidence
· 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)  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  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)  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.
· Too often this essential material is lacking. As Black LJ said in Re V (Children)  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)  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.”
· 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)  1 FLR 549, 560.
· It is particularly disheartening that Black LJ’s words three years ago in the Plymouth case seem to have had so little effect.
The Court of Appeal go on to address specificially a type of formulation in social work or guardian evidence as to why adoption is required and reject it as being wholly insufficient. Raise your hand if you’ve never seen the case for adoption set out in this type of way
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.”
· Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.
· 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.
I don’t disagree with any of this – we do need to move away from simply dealing with the enormity of adoption by the stock phrase “It is a draconian order, however” and actually dealing with the rigorous arguments for and against, for the particular children in question. That is going to require substantially more detailed social work and Guardian statements (at exactly the time when the push is towards slimmer and shorter statements)
Next topic – not just the LA making their case better, but judges producing much better judgments.
Adoption – essentials: (ii) adequately reasoned judgments
· 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  EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child)  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.”
· 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”.
· In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child)  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.
· 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.”
· 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.”
· 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)  EWCA Civ 1535,  1 FLR 2153.
I again, don’t disagree with any of this. I do wonder whether in reality this means that Placement Orders can’t be determined by the Family Proceedings Court – whilst they could make the right decisions, that level of intensity and rigour and analysis in a judgment seems very arduous for a Bench.
At this point, the Court of Appeal clearly recognised that their direction of travel might be perceived as oppositional to the revised Public Law Outline, and are at pains to point out why it isn’t. (Many people, myself included, considered the revised PLO to be largely about a rush to adoption)
Adoption – the current reforms to the family justice system
· 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.
· 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’,  Fam Law 680, and ‘The process of reform: expert evidence’,  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.
· 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.
My quick view on this – we might finish cases in 26 weeks, but they will be coming back for another round after LA plans rejected and a trial at home hasn’t worked (I hope I am wrong)
With all of that in mind, it isn’t entirely surprising that the Court of Appeal looked at the Warwickshire and Re P tests for leave to oppose adoption, and wrote a slightly new one reinforcing a rather different emphasis
Section 47(5) of the 2002 Act – the proper approach
· Subject only to one point which does not affect the substance, the law, in our judgment, was correctly set out by Wall LJ in Re P, though we fear it may on occasions have been applied too narrowly and indeed too harshly. The only qualification is that the exercise at the second stage is more appropriately described as one of judicial evaluation rather than as one involving mere discretion.
· There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.
· In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent’s ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child’s welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:
i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent’s care.
ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.
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.
iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child’s welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.
v) This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.
vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.
vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.
viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions)  2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing)  EWCA Civ 1233,  1 FLR 677, para 26.
ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.
x) We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: “the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”
I suspect one would see more successful leave to oppose applications. What that will mean for adoptive parents is yet to be seen – also what it means for the Legal Aid Agency who historically don’t fund these applications is yet to betested.
The Court of Appeal go on to set out that the test for the appellant court was whether the Judge was “wrong” rather than plainly wrong, but actually dismiss the appeal itself.