Family President moves to end uncertainty over adoption applications

The President of the Family Division has sought to address “widespread uncertainty, misunderstanding and confusion” over the correct approach to adoption applications.

In the Court of Appeal judgment this week in R (A Child) [2014] EWCA Civ 1625 Lord Justice Munby said: “There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’, that ‘adoption is a thing of the past.’

“There is a feeling that ‘adoption is a last resort’ and ‘nothing else will do’ have become slogans too often taken to extremes, so that there is now 'a shying away from permanency if at all possible' and a ‘bending over backwards’ to keep the child in the family if at all possible. There is concern that the fact that ours is one of the few countries in Europe which permits adoption notwithstanding parental objection is adding to the uncertainty as to whether adoption can still be put forward as the right and best outcome for a child.”

The President added that there was concern that the ruling in Re B-S was being used as an opportunity to criticise local authorities and social workers inappropriately – “there is a feeling that ‘arguments have become somewhat pedantic over ‘B-S compliance’” – and as an argument in favour of ordering additional and unnecessary evidence and assessments.

“It is suggested that the number of assessments directed in accordance with section 38(6) of the Children Act 1989 is on the increase,” the judge continued.

“It is said that when social worker assessments of possible family carers are negative, further assessments are increasingly being directed: ‘To discount a kinship carer, it seems that two negative assessments are required.’ There is a sense that the threshold for consideration of family and friends as possible carers has been downgraded and is now ‘worryingly low’. Mention is made of a case where the child’s solicitor complained that the Re B- S analysis, although set out in the evidence, was not presented in a tabular format.”

The President said the Court of Appeal was in no position to evaluate either the prevalence or the validity of such concerns in terms of actual practice ‘on the ground’, but they plainly needed to be addressed, “for they are all founded on myths and misconceptions which need to be run to ground and laid to rest”.

Lord Justice Munby said he wished to emphasise, “with as much force as possible”, that Re B-S was not intended to change and had 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,” he said.

“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.”

The President described the fact that the law in this country permitted adoption in circumstances where it would not be permitted in many European countries as “neither here nor there”.

He pointed out that the Adoption and Children Act 2002 permitted, in the circumstances there specified, what could conveniently be referred to as non-consensual adoption. “And so long as that remains the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply it. Parliamentary democracy, indeed the very rule of law itself, demands no less.”

Lord Justice Munby also sought to emphasise the importance of the long-established welfare balance under section 1 (of the 1989 Act or the 2002 Act, as the case may be) and of the use of the ‘welfare checklist’.

The judge also made a number of more specific points:

• The law and practice were to be found definitively stated in two cases: the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and the decision of the Court of Appeal in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035.
• There had been a significant volume of subsequent decisions of the Court of Appeal on the point, most recently the decisions in Re M-H (A Child) [2014] EWCA Civ 1396, Re M (A Child: Long-term Foster care) [2014] EWCA Civ 1406, CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479, and Re Y (Children) [2014] EWCA Civ 1553. “None of these disturb, if in some respects they appropriately amplify, the principles to be found in Re B and Re B-S.”
• The fundamental principle, as explained in Re B, was, and remained, 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'."
• Where, in an application for a care order, the plan is for adoption, the court must have regard not merely to the ‘welfare checklist’ in section 1(3) of the 1989 Act but also, and even if there is no application for a placement order, to the ‘welfare checklist’ in section 1(4) of the 2002 Act.
• At the end of the day…. the court’s paramount consideration, in accordance with section 1(2) of the 2002 Act, is the child’s welfare “throughout his life.”
• Nothing that was said in Re B-S was intended to erode or otherwise place a gloss upon the statutory requirements of section 1 of the 1989 Act and section 1 of the 2002 Act. “On the contrary, the exhortation for courts to undertake a balancing exercise which pits the pros and cons of each realistic option against the others was aimed precisely at discharging the court’s statutory duty under section 1. In particular, before making a decision relating to a child’s welfare, a court is required to have regard to, amongst other matters, the factors set out in the relevant ‘welfare checklist’. The evaluation of options described in Re B-S must be undertaken with those factors in full focus.”

The President stressed that Re B-S did not change the law but was primarily directed to practice.

Lord Justice Munby noted that the ruling expressed (at para 30) the Court of Appeal’s “real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments.”

The judge noted that Re B-S did “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”.

He added: “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’.”

The President said ‘Nothing else will do’ did not mean that ‘everything else’ had to be considered. He suggested that in many, “indeed probably in most”, cases there would only be a relatively small number of realistic options.

“Occasionally, though probably only in comparatively rare cases, there will be only one realistic option. In that event, of course, there will be no need for the more elaborate processes demanded by Re B-S and CM…”

The task for the court in such a case would simply be to satisfy itself that the one realistic option was indeed in the child’s best interests and that the parent’s consent could properly be dispensed with in accordance with section 52(1)(b) of the 2002 Act.

The President also noted that the National Adoption Leadership Board had published in November a document called Impact of Court Judgments on Adoption: What the judgments do and do not say, which had become known as the Re B-S myth-buster.

“This document appears to be directed primarily at social workers and, appropriately, not to the judges,” he said. “It has been the subject of some discussion in family justice circles. I need to make clear that its content has not been endorsed by the judiciary.”