The picture and the jigsaw

In the second article in a two-part series, Shaun Spencer analyses two significant Court of Appeal rulings in relation to adoption.

On 18 November 2014 the Court of Appeal handed down judgement in the case of CM v Blackburn and Darwen Borough Council [2014] EWCA Civ 1479. In many respects, this judgment appears to be one of the final pieces of the “nothing else will do” jigsaw.

However, what emerges from the judgment could not necessarily have been predicted a year ago when the judgments of Re B (A Child) [2013] UKSC 33 from the Supreme Court and Re B-S (Children) [2013] EWCA Civ 146 from the Court of Appeal were delivered. Those judgments were considered, by practitioners and the lower courts, as having redrawn the statutory landscape in relation to orders leading to non-consensual adoption.

In CM v Blackburn and Darwen BC, Lord Justice Ryder, dispels that conception. The Court of Appeal also took the opportunity to remind local authorities as to their responsibilities as to what is and is not required within a Care Plan whilst at the same time confirming that there can be no objection in principle to dual planning in an appropriate case, these latter aspects are considered in another article.

Facts

The mother appealed against the decision to make a placement order in relation to her daughter who was five years old. The mother did not appeal the making of a care order on the basis that she accepted that she would not be in a position to care for her child in the foreseeable future and no other family members were available to care for the child. The court at first instance therefore had to decide as between long term fostering or adoption for the child.

The court made a placement order and approved a care plan which provided for a six-month exclusive search for an adoptive placement thereafter followed by searching for both an adoptive placement and a long-term foster placement (a “dual plan”).

The mother appealed against the making of a placement order, principally, on the following two bases:

1. The effect of the decision of the Supreme Court in Re B was to introduce in essence a presumption against non-consensual adoption which could only be displaced where nothing else will do; and
2. As a matter of law dual planning cannot take place as it does not reflect a circumstance where nothing else will do because by its very nature it encompasses acceptance that something else, long-term fostering, will do.

The Court of Appeal rejected both contentions.

Meaning of “nothing else will do”

The appellants argued that the strength of language used in the Supreme Court in Re B, as highlighted in Re B-S, was such that, when the court was considering whether to make a placement order, it must factor in to its considerations that such orders should only be made where “nothing else will do”.  The appellants relied on the well-known passage from Re B-S where the President of the Family Division, Munby P stated:

“the language used in Re B (A Child) [2013] UKSC 33 is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement order and adoption orders – are a ‘very extreme thing, a last resort’ only to be made where ‘nothing else will do’ and where ‘no-other course [is] possible in [the child’s] interests’, they are ‘the most extreme option’ a last resort – when all else fails’, to be made ‘only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do’.”

In this regard the appellants sought to contend, in essence, that the requirement that “nothing else will do” meant just that; that is to say that an order leading to non-consensual adoption could not be made where there was another option which could meet the welfare requirements of the child. This argument will no doubt be familiar to local authorities and practitioners. In these circumstances, the appellant argued that a care plan which provided for both adoption and long-term fostering, by its very nature, acknowledged that something other than adoption would do and therefore could not be approved.

The Court of Appeal roundly rejected this argument. Lord Justice Ryder stated:

“I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. … It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts. The test remains untouched but the court’s approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision. …

"Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption”

So what does the ‘striking language’ of “nothing else will do” mean?

The Court of Appeal explicitly stated that the decisions in Re B and Re B-S did no more than explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same. 

“Nothing else will do” means the court adopting a five part exercise in determining whether to make a placement order [see paragraph 33]. Those five parts are:

1. Undertake a welfare analysis of each of the realistic options for the child having regard to the matter set out in s.1(4) of the Adoption and Children Act 2002 (the ‘welfare checklist’) – In essence, create a balance sheet of benefits and detriments of each option;
2. Compare the analysis of each option against the others;
3. Decide whether an option, and if so which option, safeguards the child’s welfare throughout her life;
4. Re-look at the welfare evaluation and ask whether that is a proportionate interference in the family life of the child; and
5. Undertake the statutory test in sections 21(3)(b) and 52 of the Adoption and Children Act 2002 based on the welfare analysis and value judgements already undertaken.

As Ryder LJ states:

“This is what ‘nothing else will do’ means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.”

It would therefore appear to now be settled that “nothing else will do” in this context does not bear its ordinary everyday meaning but instead is a term of art intended to describe the best option available for the child (having regard to all the options, child’s best interests and the undertaking of a five stage approach).

Post Script

On 16 December 2014, the Court of Appeal handed down its judgment in Re R (A Child) [2014] EWCA Civ 1625 in which the President of the Family Division, Sir James Munby, gave explicit endorsement for the matters stated in CM v Blackburn.

The President set out in the clearest possible terms that “nothing else will do” does not mean that ‘everything else’ must be considered. The Court is tasked with identifying at as an early a stage as possible which options for the child is realistic.

The President highlights that that process of early identification may involve a process of ruling out options at an interim stage, including the ruling out of parents as potential carers; reminding practitioners that the (unfashionable) authority of North Yorkshire County Council v B [2008] is still good law – it is said that fashion is cyclical.

Shaun Spencer is a barrister at St Johns Buildings Chambers in Manchester.

To read Shaun's first article, Care plans and dual planning, click here.