Family Law

Family analysis: Emily James, barrister at The 36 Group, considers the practical implications of the Court of Appeal judgment in Re B (A Child) (Care Proceedings) [2018] EWCA Civ 20, [2018] All ER (D) 74 (Jan), in which a decision to place a child for adoption, even when there was a viable family placement available, was upheld.

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Original news

In having made care and placement orders with a view to a girl’s adoption by her brother’s adoptive parents, the judge’s findings, reasoning and conclusions had plainly been open on the totality of the evidence and other materials before her. The Court of Appeal, Civil Division, in dismissing the father’s appeal, further held that the judge had been carefully, conscientiously and correctly applying the learning in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2015] All ER (D) 118 (Sep).

What was the background?

This case concerned an appeal from an order of HHJ George who was sitting in the Family Court in Leicester hearing care proceedings in relation to a girl, B, who was a little over a year old by the time the matter came to final hearing in August 2017.
B had a full sibling, H, who had been placed for adoption in 2016. Neither of B’s parents were in a position to care for B and did not put themselves forward to do so.
The issue, which formed the central point of the appeal was whether B should be placed with the father’s cousin (I) and her partner (R), who had been positively assessed by the local authority, or with H’s adoptive parents who were willing and wanted to adopt her.
At first instance HHJ George made care and placement orders with a view that B would be placed for adoption with H. The father sought permission to appeal.

What did the court decide? What effect did the decision in Re T have upon the court’s decision in this case?

The father was given permission to appeal by McFarlane LJ, who observed that the appeal raised an important point of principle.

The appeal was ultimately dismissed, with the lead judgment of the Court of Appeal given by the President of the Family Division, Sir James Munby, Davis LJ and Underhill LJ concurring.

Munby P identified the point of principle identified by McFarlane LJ as being the ‘ramifications of the decision of this court in Re T’, and his judgment contains a useful examination of that decision.

He later set out, deliberately, key paragraphs of HHJ George’s judgment, commending her careful, thoughtful and nuanced approach and concluding that her findings, reasoning and conclusions were plainly open to her on the totality of the evidence before her.

Having undertaken an examination of the principles of Re T (see below), Munby P went on to address one of the main issues which HHJ George had had to contend with at first instance, namely the existence of a viable family placement as one of the realistic options before the court.

He quoted the judge’s analysis of the evidence in relation to realistic options. The judge had noted that the guardian’s evidence had been ‘very thoughtful’ and she had been careful to point out that her recommendation, that B be placed for adoption with H, did not turn on an assessment of (I) and (R) but the weight attached to the competing factors in ss 1(4)(c) and (f) of the Adoption and Children Act 2002. Namely, the effect of B having ceased to be a member of her original birth family mitigated by the ‘big plus’ of a lifelong relationship with her full sibling and closest relative and, on the other hand, the relationships she had with her relatives, the likelihood of those relationships continuing and the value to the child in them doing so.

Munby P went on further in that context to consider the implications of Re W (Adoption: Approach to Long-Term Welfare) [2016] EWCA Civ 793, [2017] 2 FLR 31. Noting that HHJ George had correctly recognised that a family placement was a viable and realistic option, it was important to appreciate the point made by McFarlane LJ in Re W at para [71] that there is no ‘right’ for a child to be brought up by their natural family, and that any presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or ‘presumption’ exists and the only right is for the arrangements for the child to be determined by affording paramount consideration to their welfare throughout their life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any European Convention on Human Rights (ECHR) Art 8 rights which are engaged.

The other material point arising from Re W in the context of this case, and the point made above, is McFarlane LJ’s observations that if a family placement has been assessed as viable it makes it a ‘runner but not a winner’ in the absence of full consideration of any other factor that is relevant to her welfare.

In respect of the effect the principles established in Re T had on this appeal, Munby P concluded as follows:

‘23. The central core of the father’s complaint relates to the judge’s application—in his counsel’s submissions, her misapplication—of the principles in Re T, the essence of the complaint being that the judge had, in conflict with those principles, treated the matter as a competition between the adopters and the kinship carers and, illegitimately, been drawn into an inquiry as to which would be the “better” placement. As the passages from her judgment (judgment, paras [20], [21] and [25]) which I have set out demonstrate, that is not what the judge said she was doing or what she thought she was doing. Nor, in my judgment, is that what she was in fact doing. On the contrary, she was carefully, conscientiously and, in my judgment, correctly applying the learning in Re T.
24. How else was the judge to proceed? She was confronted with the fact—the reality—that B’s only full sibling, H, a sibling close to her in age, had been adopted and that H’s adoptive parents were willing to adopt B. That was not something the judge could ignore, as it were put out of her mind, if she was to comply with her statutory duty under s 1(4) and in particular s 1(4)(f) of the 2002 Act. And in having regard to that objective, factual, reality, the judge was doing nothing inconsistent with the learning in Re T and the earlier authorities to which I have referred.
25. As Mr Tyler and Ms James pointedly observe, there is nothing in Re T to say that the court can ignore a crucial factor which is necessarily concomitant with a particular placement. The presence of H in B’s life must fall in the credit side of the balance sheet in relation to placement with H’s adopters, just as the loss of H must fall in the debit side in relation to the kinship placement; to ignore this would, they say, be a nonsense. I agree.’

What are the practical implications of this case?

The Court of Appeal decided that the fact of a full sibling in an adoptive placement could amount to a factor which should be weighed in the balance when considering placement for adoption even when there is a viable family placement available.
The practical implications are as follows:

• this judgment appears to endorse McFarlane LJ’s observations in Re W that positive assessment of family makes that option a ‘runner not a winner’ and that what is required is a global holistic analysis of the realistic options for the child to be determined by affording paramount consideration to their welfare throughout their life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged;
• where there is a factor so material to the child’s welfare known about a prospective adopter or prospective adoptive placement, it cannot be ignored; this does not create a ‘competition’ per se between family and adopters, and
• the existence of a sibling in a prospective adoptive placement can be considered as a factor to be weighed in the balance when undertaking an analysis of the pros and cons of each realistic option at care and placement stage; in this case, there was the presence of a full sibling but there shouldn’t be any reason it shouldn’t also apply to half-siblings, subject to the weight afforded to that fact.

Interviewed by Susan Ghaiwal

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