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View from the Foot of the Tower: Two steps forward, two steps back
Sep 29, 2018, 20:12 PM
family law, placement orders, care orders, care proceedings, adoption, Re R (A Child)  EWCA Civ 1625, Re B, Re B-S
All that the Court of Appeal are really doing at present is identifying that appeals that are being taken on narrow, technical points, are missing the point. Look at the totality of Lady Hale’s formulation and capture the spirit and essence of that, not just a dogmatic and over-prescriptive literal interpretation of the 'nothing else will do' soundbite.
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Dec 17, 2014, 06:23 AM
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Following the recent batch of
Court of Appeal authorities, which may or may not have coincidentally been
timed with the decline in adoption statistics, the Court of Appeal have given a
heavyweight judgment in
Re R (A Child)  EWCA Civ 1625.
One would be charitable in
describing the appeal itself as flimsy, it is somewhat surprising that it ever
made it past permission stage.
Somewhat unusually, the
judgment was preceded with newspaper articles the day before dropping hints
that this was going to be a major reset of 'nothing else will do' to something
more akin to 'if adoption is in the best interests of the child', and that this was going to be the Court of
Appeal embracing the
So, is it?
Well, at first reading, one
might think so.
It contains passages like
' 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.
 There is concern that Re B-S is 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. 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.
 We are 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 need to be addressed, for they are all founded on
myths and misconceptions which need to be run to ground and laid to rest.
 I wish to emphasise, with as much force as
possible, that Re B-S was not intended to change and has 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. 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.'
[My own experience is that
the ‘myths’ or ‘misconceptions’ here are fairly easily dispelled by a simple
Re B-S, and are exaggerated distortions of the authority for effect
or benefit. I haven’t come across any of those assertions myself, although they
have considerable resonance with the way that the 'imminent risk of really serious
harm' formulation was being pushed as an authority for 'you can’t remove a
child on an Interim Care Order for neglect'
- the fault is with people misusing the authority and pushing it further
than it goes, rather than the authority itself.]
One thing that is often
Re B and Re B-S is that those cases did establish that the
legal test for appeal of a Care Order or Placement Order moved from 'plainly
wrong' (which was a very high test) to 'wrong' (which feels more of a
subjective test). That can’t be ignored when considering that more cases are
vulnerable to appeal and have been appealed since those decisions were made.
Re B-S was not intended
to change, and has not changed the law. We also see in the judgment later:
' 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 undertaken with those factors in
 Re B-S did not change the law. Re B-S was
primarily directed to practice. It expressed (para 30) our: "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." It continued "This is nothing new. But it is time
to call a halt." It demanded (para 40) that "sloppy practice must
stop". It spelt out (see para 33) "what good practice, the 2002 Act
and the Convention all demand."'
That is a very accurate
description of Re B-S - it is a
routemap for practice, both in terms of professional analysis and evidence and
the standard of rigour and reasoning required in judgments.
However, does this authority
mean that the LAW hasn’t changed and that one simply looks at the statute?
It is worth remembering that
there is nothing within the Adoption and Children Act 2002 that places adoption
as an order to be avoided or a last resort – it simply sets out the criteria
and the key one is in the dispensing of parental consent to the making of a
Section 52(1) 'The court cannot
dispense with the consent of any parent or guardian of a child to the child
being placed for adoption or to the making of an adoption order in respect of
the child unless the court is satisfied that —
(a) the parent or guardian
cannot be found or is incapable of giving consent, or .
(b) the welfare of the child
requires the consent to be dispensed with.'
In all of the adoption
jurisprudence since 2002, the chief focus has been on what the word 'requires'
means in s 52(1)(b).
What do the Court of Appeal
say in Re R?
' The fundamental principle, as explained in Re B,
is, and remains, 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". As Baroness Hale of Richmond said in Re B, para 198: "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."
She reiterated the point, para :
"We all agree that an order compulsorily severing
the ties between a child and her parents can only be made if "justified by
an overriding requirement pertaining to the child's best interests". In
other words, the test is one of necessity. Nothing else will do."
This echoes what the Strasbourg court said in Y v
United Kingdom (2012) 55 EHRR 33,  2 FLR 332, para 134:
"family ties may only be severed in very
exceptional circumstances and that everything must be done to preserve personal
relations and, where appropriate, to 'rebuild' the family. It is not enough to
show that a child could be placed in a more beneficial environment for his
upbringing. However, where the maintenance of family ties would harm the
child's health and development, a parent is not entitled under article 8 to
insist that such ties be maintained."'
The judgment is silent about
whether that amounts to law, or interpretation of the statute, but if one were
to baldly approach a dispensation of parental consent on a common-sense
interpretation of the word ‘requires’ it is likely that one would fall short of
the 'very exceptional circumstances' that the ECHR requires. The crux of Re B and Lady Hale’s formulation
was to hone an interpretation of s 52(1)(b) that incorporated the concept of
The statutory test may remain
the same ‘does the child’s welfare REQUIRE that consent be dispensed with’,
but in approaching that exercise, the issues identified by ECHR in Y v UK and
the Supreme Court in
Re B still stand.
There is not a watering down of those principles.
If you are in any doubt about
that, the President says so explicitly at para  (underlining mine)
' The core requirements were identified as follows
"33 Two things are essential – we use that word
deliberately and advisedly – both when the court is being asked to approve a
care plan for adoption and when it is being asked to make a non-consensual
placement order or adoption order.
must be proper evidence both from the local authority and from the guardian.
The evidence must address all the options which are realistically possible and
must contain an analysis of the arguments for and against each option …
thing that is essential, and again we emphasise that word, is an adequately
reasoned judgment by the judge …
… The judicial
task is to evaluate all the options, undertaking a global, holistic and …
multi-faceted evaluation of the child's welfare which takes into account all
the negatives and the positives, all the pros and cons, of each option."
 The nature of that exercise has been helpfully
illuminated by Ryder LJ in CM, para 33. Put more shortly, by Ryder LJ himself,
in Re Y, para 24:
"The process of deductive reasoning involves the
identification of whether there are realistic options to be compared. If there
are, a welfare evaluation is required. That is an exercise which compares the
benefits and detriments of each realistic option, one against the other, by
reference to the section 1(3) welfare factors. The court identifies the option
that is in the best interests of the children and then undertakes a
proportionality evaluation to ask itself the question whether the interference
in family life involved by that best interests option is justified."
I respectfully agree with that, so long as it is
always remembered that, in the final analysis, adoption is only to be ordered
if the circumstances meet the demanding requirements identified by Baroness
Hale in Re B, paras 198, 215.'
This is not, then, the Court
of Appeal resiling from the Baroness Hale formulation (and indeed, they could
not even if they wished to). Rather, this is the Court of Appeal putting down a
marker that one needs to look at and absorb the totality of those remarks and
not (as lawyers tend to do) compressing them to a simple soundbite of 'nothing
else will do'.
Appeals based on a literal
interpretation of 'nothing else will do' or which are in substance little more
than a technical complaint about a failure of a judgment to meet a notional
ideal of what a 'B-S compliant judgment' would look like are probably
doomed. Such arguments might have some
force as icing on a cake, but they can’t be the cake.
[Of course, the Court of
Appeal did rather give the impression that procedure WAS the cake, in granting
so many appeals in Autumn 2013 and Spring 2014, the low watermark being
overturning a Placement Order where both parents were serving long custodial
sentences because the judgment had not provided a rigorous analysis of why the
child could not wait a year or more for those sentences to be completed.]
The Court of Appeal had been
given anecdotal information about the 'nothing else will do' approach being
used to push something more akin to 'leave no stone left unturned'. They emphasise that the task is to consider
every REALISTIC option.
' I emphasise the words "realistically"
(as used in Re B-S in the phrase "options which are realistically
possible") and "realistic" (as used by Ryder LJ in the phrase
"realistic options"). This is fundamental. Re B-S does 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. 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".'
With a heavy heart, you are
probably imagining that having spent 18 months arguing about what 'nothing else
will do' means, we are now going to spend another 18 months arguing about what
'realistic' means. The President does
his best to nip this in the bud.
' What is meant by "realistic"? I agree
with what Ryder LJ said in Re Y, para 28:
"Realistic is an ordinary English word. It needs
no definition or analysis to be applied to the identification of options in a
[A cynic might retort that
'require' is an ordinary English word, but we have had inordinate amount of
detail about what that word is construed to mean.]
In clearing up the worst
excesses of the technical point argument, the Court of Appeal have probably
helped avoid bad points being taken at final hearing, and cut the number of
flimsy appeals coming before them (which of course result in emotional distress
to all involved and delay for the child).
So that’s the two steps
What about the two steps
It is worth bearing in mind
that these days, Placement Orders are litigated before justices or district
judges. They need to know the legal
framework and what principles to apply. There is a risk, as the Court of Appeal
continue to distill and refine that we have moved from there being two standard
authorities (Re B on the legal principles, Re B-S on the practical
requirements) to a bundle of authorities being required, each illuminating a
small detail to the principles.
Also, the marker that the
Court of Appeal set down in Re B-S was important and long overdue – social
workers and Courts really do need to engage with the enormity of adoption, its
benefits and drawbacks and really apply their minds to whether it is right for
this particular child.
The President is of course
right, when he says:
' ... 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. 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.'
And one does not want to lose
the very valuable practice issues from Re B-S with practitioners who are
hard-pressed for time just thinking that a 'Reset' button has been pressed and
that those issues are no longer applicable.
The formulation in Re B
stands as the principle to be applied when considering s 52(1)(b) and making a
Placement Order. The practice guidance
in Re B-S all still stand.
All that the Court of Appeal are really doing at
present is identifying that appeals that are being taken on narrow, technical
points, are missing the point. Look at the totality of Lady Hale’s formulation
and capture the spirit and essence of that, not just a dogmatic and
over-prescriptive literal interpretation of the 'nothing else will do' soundbite.