Nothing else will do revisited
Anthony Hand reports on two important High Court and Court of Appeal judgments in relation to adoption.
The facts of Re D (2014) EWHC 3388 are important, and not that uncommon any more. D was aged two years old. He had been born to Czech parents. In the care proceedings in this country, the local authority and the Guardian were at one in that they were suggesting that care and placement orders should be granted.
However, on the other hand the parents argued that D should be returned to their care and it was their plan to go home to the Czech Republic. They had the support of Czech social services, and of a psychotherapist who said she could work with the family in the Czech Republic. If D was with his parents he would have the additional advantage of being brought up to know and participate in his cultural background as a Czech Roma boy. The local authority, for obvious reasons, accepted that in this country they would not be able to place D in a family where his ethnical background could be matched.
In addition there were two middle courses available. The first was leaving D with his current foster carers under a Special Guardianship Order. (Comment – I really liked the Judge’s description of a SGO – “Special guardianship of course endows the guardian with super-parental responsibility but does not formally extinguish the parental responsibility of the parents which lies fallow in a sort of symbolic state.”). The second middle option was a long-term foster care placement in the Czech republic.
On the evidence the court discounted a placement of D in Poland with the parents. The risks would be too great. However, what followed next was in my view slightly unexpected (but a sign of things to come?)
Mr Justice Moor quite rightly reminded himself of the case of Re B-S – placement for adoption should only occur if nothing else will do. So the question then became will a SGO placement in England or a long-term fostering placement in the Czech Republic “do”? The judge in fact decided that a SGO placement with the current foster carers or a long-term fostering placement in the Czech Republic would in fact “do” very nicely for this two-year-old boy.
Moor J described the advantages of adoption in this country as a “truism”. However, he went onto to point out that our practice of forced adoption is unusual in Europe:
“The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment.”
At the end of the day I think it was D losing touch with his Czech/Roma background that swayed the judge, as well as (and intricately connected with) considerations of never seeing his birth family again. The court directed that SGO with the current foster carers was the best way forward with exploration of long term foster care in the Czech Republic a close second.
Additionally and importantly, in the weeks following the Re D decision above we have now received the judgment of Ryder LJ in the unconnected case of CM v Blackburn [2014] EWCA Civ 1479. The central point of Ryder LJ's judgment is set out below. It goes I think some way to softening the blow of "nothing else will do", and fits with the pro-adoption reasoning of Sir Martin Narey that was on the television news and in newspapers in early November 2014. Ryder LJ said:
" I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. .......It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit. The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available. The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates"
My interpretation is that in a case where adoption and long term fostering/SGO might well "do", you must still carry out an analysis of which option is best. If adoption is best, and it is a proportionate interference, then it can still be preferred over other lesser options. But in some cases such as Re D ethnic considerations and/or bonds with family or even a foster care may be the winning cards that tip a balance one way or another.
Anthony Hand is a barrister at College Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..