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(Court of Appeal, Jackson, McFarlane and Lindblom LJJ, 29 July 2016)
Public law children – Adoption – Special guardianship order in favour of biological family member – Weight to be given to child’s placement with prospective adopters – Meaning of ‘nothing else will do’
The appeal from a special guardianship order was allowed.
The child, born in 2014, was placed with foster carers shortly after birth when her parents were unable to care for her. Care and placement orders were granted and no suitable kinship carers were identified. At 7 months the child was placed with the prospective adopters where she had remained ever since. An adoption application was made which was opposed by the paternal grandparents who had not previously been aware of the child’s existence. They sought a child arrangements or special guardianship order. An independent social worker and the guardian supported their application.
The application for an adoption order was dismissed and a special guardianship order was granted. The prospective adopters appealed.
The appeal was allowed.
When the child had been placed with prospective adopters for a significant period of time the welfare balance to be struck where a biological family member put themselves forward at a late stage had to reflect those circumstances. In those circumstances the court would require expert evidence as to the strength of the attachment between the child and the adopters and the likely emotional and psychological consequences of ending it. In this instance the generalised evidence of the social worker and the guardian fell far short of what was required.
The phrase ‘nothing else will do’ was no more than a useful distillation of the proportionality and necessity test set out in the European Convention and reflected the need to afford paramount consideration to the welfare of the child throughout her lifetime.The existence of a viable home with the child’s biological grandparents should make than option a ‘runner’ but not an automatic ‘winner’. There was no right or presumption for a child to be brought up by her natural family.