The President of the Family Division, Sir James Munby, has
today handed down judgment in
R (A Child)
 EWCA Civ 1625
in which he has taken the opportunity to address what he refers to as the ‘widespread
uncertainty, misunderstanding and confusion’ which has arisen since the
Specifically, the President confirms in
that Re B-S
intended to, and has not, changed the law.
It has not set any higher hurdle for placement orders. Sometimes adoption is in the best interests
of the child and, where that is the case, the courts should not shy away from
making a placement order. Children
should not be kept with their birth families if it compromises their welfare.
The President clarified the position as follows:
- Re B and Re B-S definitively set out the law and practice in this
- Cases such as Re
v Blackburn with Darwen Borough Council
do not change or undermine the
principles set out in
Re B and Re B-S, though in some cases they ‘appropriately
- The test from Re B-S, that adoption without parental consent is only permissible
where ‘nothing else will do’, remains.
- In accordance with s 1(4) of the Adoption and
Children Act 2002, the child’s welfare
his or her life
is the paramount consideration. As Lord Justice Macur said in Re M-H, that is the aspect of the test
which qualifies the concept that ‘nothing else will do’. Nothing that was said in
Re B or Re B-S changes or
modifies that test. The exercise of
balancing the pros and cons of each realistic option is designed to discharge
the court’s s 1 duty.
- Re B-S
was primarily directed at what was termed ‘sloppy practice’. As set out in that case, before a care or
placement order could be made, it is essential to have:
proper evidence, from the local authority and
from the guardian, addressing all the realistic options and analysing the
arguments for and against each option; and
- a reasoned judgment evaluating all the options
and ‘undertaking a global, holistic and … multi-faceted evaluation of the
child's welfare which takes into account
the negatives and the positives, all
the pros and cons, of each option.’
- The term ‘realistic’ is key. Re B-S does not require further analysis
of options which have been legitimately discarded at an early stage in
proceedings as being unrealistic. It is
not necessary for the judgment to forensically analyse every possibility, only
those options identified as being realistically possible – only sensible,
practical options should be analysed.
- If there is only one realistic option, there is
no need to follow the full process set out in
Re B-S. In those
circumstances, the court’s task is to satisfy itself that that one option is in
the child’s best interests and that parental consent can properly be dispensed
- ‘Realistic’ in such circumstances means simply
realistic – using the normal everyday definition.
- The proper discarding of unrealistic options at
an early stage in the proceedings does not mean that every possible option has
to be determined and exhaustively considered before it can be concluded that
the option is not realistic.
- There is no basis for the recent assumption that
more than one negative assessment has to be obtained in order to rule out a
potential carer. Second assessments
cannot, and should not, be ordered unless they are ‘necessary to assist the
court to resolve the proceedings justly’.
- ‘Necessary’ in those circumstances should be
determined robustly – a simple hope that ‘something will turn up’ will not
- There is no reason in principle why, after
hearing oral evidence at an early hearing, the court cannot rule out one or
other of the parents as a realistic option, in the same way as other family
members can be ruled out. However,
judges should be appropriately cautious in ruling out both parents, or the only
parent putting themselves forward.
- In considering whether a judgment can be
criticised as ‘linear’, consideration has to be given to the
substance rather than the structure or
form of the judgment. A judgment, whether
written or oral, is necessarily linear in form if it is to be coherent. Focus should be on the nature of the judicial
analysis, where it is necessary that there should have been a ‘balancing
exercise in which each option is evaluated to the degree of detail necessary to
analyse and weigh its own internal positives and negatives and each option is
then compared, side by side, against the competing option or options’.
- As a final point, the President pointed out that
the National Adoption Leadership Board’s
was not endorsed by the judiciary.
Speaking of the ruling, Alexandra Conroy-Harris, Legal Consultant for the British Association for Adoption & Fostering, said:
'The British Association for Adoption & Fostering (BAAF)
welcomes the judgment today by Sir James Munby, President of the Family Division
of the High Court of England and Wales in Re R (A Child), that where adoption is
in the child’s best interests, local authorities and courts must not shy away
from making care orders with a plan for adoption.
There has been a great deal of uncertainty around adoption of
children from care for several months which has directly impacted on some of the
most vulnerable children in society with adoption plans falling by almost 50%.
This judgement will help both courts and local authorities when making decisions
regarding the long term future of these children.
President Munby addresses concerns that children are being
placed inappropriately with family members to avoid adoption. He emphasises
that ‘”nothing else will do” does not mean that “everything else must be
considered”’ and that it is acceptable, if properly done, for family members to
be ruled out as realistic potential carers at an early stage of a case.
A child should never be placed for adoption where there is a
member of their family who can provide appropriate care for them, but there are
some children for whom adoption is in their best interests. We support the
President's efforts to improve the standards of evidence and analysis in all
cases involving decisions about a child's future, and welcome the clarification
that adoption should be properly considered as an option for those children.'
This judgment has been awaited as providing much needed
clarification on the law around placement orders following
and Re B-S
certainly seems that the President has taken the opportunity to address the
areas of confusion. Of course only time
will tell whether this judgment is successful in its desired effect.