Judge criticises regular misunderstanding of Lady Hale’s “nothing else will do” adoption comment

It appears there is a regular misunderstanding or misapplication of the words of Lady Hale in the Supreme Court case of Re B that in relation to the test for adoption, “nothing else will do”, a Family Court judge has warned.

In UDTQ (No Adequate Care Planning), Re [2024] EWFC 19 (B), His Honour Judge Middleton-Roy dismissed a local authority’s application for placement orders in respect of three young children, concluding that adoption was “neither necessary in this case nor is it the proportionate response”.

The case concerned four children - 'U', 'D', 'T' and 'Q', aged between seven and two.

The local authority began proceedings in February 2023, with concerns that each of the children were suffering or were at risk of suffering “significant harm” in the form of emotional harm, physical harm and neglect, attributable to the care given to them by their parents, not being what it would be reasonable to expect a parent to give a child, said the judge.

The family had a long history of local authority involvement. Previous Court proceedings began in 2015 in respect of the parents’ five older children, who were not the subject of the current proceedings.

The 2015 proceedings concluded with the court making care orders for each child. HHJ Wright found that, “the case raises serious allegations” made by the four oldest children, “of physical and emotional abuse”.

HHJ Middleton-Roy said that each of the four subject children ('U', 'D', 'T' and 'Q') in the present proceedings, all of whom were born after the 2015 proceedings concluded, have “variously been the subject of child protection plans and child in need plans throughout their lives”.

He noted that the mother had made “significant allegations” against the father of domestic violence, physical abuse and coercive and controlling behaviour, including an allegation that in 2022 he put his hands around her throat and attempted to strangle her.

In the present case, the local authority had applied to the court for a care order for each of the four children. The local authority’s care plan for the eldest child, ‘U’, was one of long-term foster care. U is presently living in a residential unit under an interim care order.

U had previously remained in the care of his father, until the father was arrested in 2023 on charges of grievous bodily harm, actual bodily harm, threats to kill, rape, coercive and controlling behaviour and attempting to choke or suffocate.

The local authority sought placement orders for the youngest three children, ‘D’, ‘T’ and ‘Q’, with the care plan that the children be adopted. The youngest three children were placed together in interim foster care.

The mother opposed the local authority’s applications for placement orders for the youngest three children.

The father opposed the local authority’s applications for each child. He sought to care for all the children. However, the judge noted that the father recognised during the final hearing that, “due to the competing needs of the children, it may be unrealistic for all the children to be placed in his care. In the alternative, he would seek to care for the eldest child, U”.

The Children's Guardian initially supported the local authority’s applications for care orders for each child and for placement orders for the youngest three children.

At the start of the final hearing, however, the Guardian revised her recommendation by recommending a “time-limited search” for an adoptive placement for the youngest three children, said the judge.

He added: “Having the benefit of hearing all the evidence, at the conclusion of the Final Hearing, the Guardian further revised her recommendation, informing the Court that she no longer supports the Local Authority’s applications for Placement Orders for any of the children.”

HHJ Middleton-Roy noted that the youngest three children were each placed together with “highly experienced” foster carers, where they were “thriving”. The foster carers have three older children of their own and are currently also caring for a baby.

The judge noted that all the professional evidence, including a sibling assessment, concluded that the three subject children should remain together as a sibling group.

However, the Children’s Guardian concluded that the children’s existing placement with the foster carers was unlikely to be a long-term option for the children, said the judge.

The Guardian recommended that the children should be placed together as a sibling group in a foster placement with two carers and with no other children in that placement.

On this, HHJ Middleton-Roy said: “The Guardian’s reasons for not supporting the making of Placement Orders for any of the children were wholly compelling. The Guardian concludes that, on all the up-to-date evidence, including the evidence of the Local Authority’s family finding Social Worker, it is highly unlikely that any adopters could be found who were willing to adopt this sibling group.

“Further, it is unlikely that adopters could be found who have the skills required to meet the needs of these siblings. Furthermore, it is unlikely that adopters would be given the level of support they are likely to need in the long term to meet the needs of each of these siblings.”

The Guardian recommended that the court dismiss the local authority’s applications for placement orders for the youngest three children. The judge described the Guardian’s reasoning as, “once again, unimpeachable".

At the final hearing, the local authority continued to advocate for a placement order for each of the three youngest children.

HHJ Middleton-Roy said: “In her oral evidence, the Social Worker made repeated, generic statements regarding the Local Authority’s decision to pursue its care plan of adoption for each of the three children, without reflecting upon the specific profiles of these children and the circumstances as they presented at Final Hearing.”

The social worker had told the Court: “I do not want to deny [‘D’] having a forever family and having that opportunity,” and “the Local Authority does not want to deny the children the opportunity of being matched with potential adopters.”

It appeared to the Court that the local authority’s approach was to consider adoption as a starting point, which, the judge said, was the “wrong approach”.

He said: “Regrettably, in this Court’s experience, it appears there is a regular misunderstanding or misapplication of the words of Lady Hale in Re B [2013] UKSC 33; [2013] 2 FLR 1075. At paragraph 198 of the judgment of the Supreme Court, Lady Hale held:

“…it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.”

“It appears to this Court that the shorthand phrase ‘nothing else will do’ regularly becomes detached from the rest of Lady Hale’s words and misinterpreted out of context by many to mean, ‘adoption is the gold standard and anything less is not good enough.’”

HHJ Middleton-Roy said: “In this case, had the Local Authority taken into consideration the current situation of each of the children as the case evolved, applying the correct legal test to the facts, it is difficult to conclude that the Local Authority could have reached any outcome different to that of the Children's Guardian. The pertinent guidance from the Court of Appeal in F (A Child : Placement Order: Proportionality) [2018] EWCA Civ 2761 has been in place now for over five years, yet, in this Court’s experience, it is rarely, if ever, applied by a Local Authority advancing a final care plan envisaging adoption.”

The judge concluded that after comparing the advantages and disadvantages of adoption with long term foster care, “the balance tips firmly away from adoption as being in the best interests of each of the three youngest children”.

Dismissing the local authority’s applications for placement orders for ‘D’, ‘T’ and ‘Q’, the judge said: “This Court must conclude that adoption is not in the best interests of the three youngest children for the reasons expressed by the Guardian. Further, this Court must conclude that adoption is neither necessary in this case nor is it the proportionate response.”

The judge added that the court agreed with the Guardian that careful care planning was necessary to ensure that the needs of these children to have contact with their parents and with ‘U’ are “properly considered”.

Finally, he added: “There is merit in the Guardian’s recommendation that it is of importance that the children are not left in their current placement for a lengthy period, while the Local Authority decides whether the existing carers can meet the children’s needs.”

Lottie Winson