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Adoption myth buster: Re B and Re B-S

Date:13 NOV 2014
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New figures have shown that the number of local authorities recommending adoptions have almost halved since last year.

The National Adoption Leadership Board (NALB) – set up earlier this year as an advisory body by the government – have released figures showing that English local authorities have been putting forward 47% fewer children for adoption. They believe that this is a result of the recent Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075 and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035 High Court decisions being misinterpreted.

As a result, the group – which is headed by Sir Martin Narey and includes members from the Association of Directors of Children’s Services – have released a statement they describe as an 'adoption myth-buster' for local authorities, designed to clarify the consequences of legal judgments.

In recent years adoption rates have been at their highest ever, but there’s been a significant fall over the last year, which the NALB believe are mainly because of the judgments. The figures show that in July-September 2013 there were 1,830 initial decisions by local authorities, compared to April-June 2014, where there were 960. This fall is also mirrored by a 54% drop in the number of placement orders from 1,650 to 750 over the same period. They say that the recent changes risk reversing the substantial progress made in recent years.

So what are the Re B and Re B-S 'myths' that need busting?

Adoption myth-buster

The key message is that the law has not changed. Here’s what the NALB say in full:
'Courts must be provided with expert, high quality, evidence-based analysis of all realistic options for a child and the arguments for and against each of these options. This does not mean every possible option. The judgment in Re B-S clearly states that the “evidence must address all the options which are realistically possible”.

Where such analysis has been carried out and the local authority is satisfied that adoption is the option required in order to meet the best interests of the child, it should be confident in presenting the case to court with a care plan for adoption.'
They also identify five myths:

1. The legal test for adoption has not changed.

It’s still true that it is and should be the 'last resort', but that does not mean that no children should be removed from their parents and adopted: in some cases it will be necessary. Although the court have talked about adoption orders being made only when 'nothing else will do', that 'nothing' needs to be defined: it means no realistic alternative. Blogger Suesspicious Minds has written about the judgments where the Court of Appeal have clarified this here and here.

2. To satisfy the courts, all alternative options must be considered.

Again, the issue stems from wording: the President of the Family Court said that 'all realistic options must be considered'. Therefore, the local authority needs to consider the options – but only realistic ones. Assessments must be proportionate and not risk delay in proceedings, unless, for example, a connected persons assessment has a good possibility of recommending suitability of the potential carers.

3. If adoption is only appropriate where 'nothing else will do', foster care or special guardianship should be pursued instead.

Re B described adoption against a parent’s wishes as being one of the most draconian things a state can do, and should be considered only when 'nothing else will do'. However, this does mean settling for an option that does not meet the child’s needs. This was shown last month in the case of Re M-H (Placement Order: Correct Test to Dispense with Consent) [2014] EWCA Civ 1396, [2015] 1 FLR (forthcoming)  when there was 'another credible option'. In this case, it was decided that adoption was the best option despite an alternative being available, because adoption was still the better option: when taking in to account the child’s physical and emotional needs.

4. Because it is a last resort, planning for adoption must wait.

Local authorities must prepare for an adoption order being made, even if it’s possible that an alternative might be found. This is so that wherever possible, there is a minimal delay, which is in the child’s best interest.

5. The 26-week rule applies to placement orders.

The 26-week time limit does not apply to adoption orders: it applies to care and supervision orders only. However, that doesn’t mean that adoption proceedings should proceed slowly – as we all know, delay can be very damaging to a child, so speed is of the essence (whilst still applying due care).

Two truths

They finish off their statement with two truths:

1. High-quality assessment and evidence is essential in all cases.

High quality, reflective, evidence-based assessment is essential to underpin all social work and ensure that every decision taken is in the best interests of children. The new social worker evidence template (launched in 2014), helps ensure this.

2. The judgments criticised some cases where the test for granting leave to oppose the making of an adoption order had been applied too harshly.

This is the crux of the matter, running through the whole statement. The overriding consideration should always be the welfare of the child, whatever the decision. While the parents’ wishes and feelings should be considered, the interests of the child will always be paramount.

Overall, the statement is a useful clarification – particularly for those who haven’t been able to keep up with the latest judgments that have clarified the statements made in Re B and Re B-S.

Will the mythbuster work, and ensure that the child’s welfare is the guiding force behind local authority decisions, instead of understandably-misinterpreted legal judgements? Time will tell, but feel free to comment below.

The report Impact of Court Judgments on Adoption: What the judgments do and do not say is available to download here.

This news item originally appeared on the Carter Brown website and has been reproduced here with permission of the copyright holder. Carter Brown sponsored the Chambers of the Year category at the Family Law Awards 2014.