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‘Nothing else will do' - why the ‘last resort' won't necessarily be the last word ...

Date:15 OCT 2013

Following the decision of the Supreme Court in Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR (forthcoming) particularly the judgment of Baroness Hale in relation to proportionality and the Court of Appeal in Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR (forthcoming) the phrase  'nothing else will do' will be one which peppers documents, questions, submissions and judgments in any case involving placement orders or permanent separation from a parent.

As the Court of Appeal summarised in Re B-S, the language used in Re B was striking and going beyond the usual 'judicial window-dressing':

'The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption - care orders with a plan for adoption, placement orders and adoption orders - are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort - when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras [74], [76], [77], [82], [104], [130], [135], [145], [198] and [215].'

Many might say that this is a long-overdue reminder to practitioners and courts that the previous phrase of choice 'adoption is a draconian order' was intended to really vividly mean something, rather than to nod at before going on to make the order.

We know of course, that since 2009 the number of children currently subject to placement orders has increased by 95%. Were each of those ‘exceptional circumstances, motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do?'

There have been a raft of cases in the Court of Appeal, chiefly leading up to Re B-S, but the first tranche of post Re B-S cases are now emerging (Re Y 2013 for example), where the Court of Appeal have granted appeals and ordered re-hearings in placement order cases which historically would not have troubled them.

Time will tell whether the number of placement orders being made is diminished by these judgments, or whether broadly the same number will be made but will require greater rigour and evidence to satisfy the court.

If the history of family law (or indeed any law) tells us anything, it is that advocates are capable of quibbling over common-sense words and phrases, only in the law would intelligent and well-educated people need to be told what the word 'necessary' means. 

On that basis, one suspects that 'nothing else will do' is not the last word on this subject.

For example, which of these following definitions of 'nothing else will do' is actually right?

(1) There is genuinely, literally, no other option that could be conceived of.
(2) The other options available are appreciably worse for the child than adoption would be.
(3) There are other options, but they require a degree of intervention by the state (ie the local authority) that they would in effect be unworkable.
(4) There are other options, but they require a degree of intervention by the state that the state says is disproportionat  (at some stage, the R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1 decision is going to come into play).
(5) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 26-week PLO timetable.
(6) There are other options, but in order to make use of them, the court would not be able to make a final decision within the 8-week extension to the 26-week PLO timetable that is permissible in 'exceptional' circumstances.
(7) There are other options, but in order to make use of them, the court would be extending the decision-making process to a point where the delay would be harmful for the child and the harm can not be justified [that is really where we have historically been].
(8) Any of the other options would cause harm to the child or carry with it a significant risk of harm to the child, and weighing up the options, adoption is the least harmful of all of the options available.
(9) Another one/ten that I have not thought of yet.

Option 5 seems to be the weakest of these, but of course in the context of the Government and senior judiciary striving to achieve an average of 26 weeks to conclude care cases it is an important one.

After 'nothing else will do', this passage from Re B-S will be the next most frequently heard:

'We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.' (para [49)

Primarily, that passage is dealing with the need for the court to have proper robust and rigorous evidence about the range of options available for the child before reaching a decision (and the need to assertively case manage to obtain such evidence), rather than how to deal with a parent's case for an extension of time where that is 'something else that will do', but the final sentence provides some scope for such adjournments to be made.

After the precise meaning of 'nothing else will do' has been litigated to death, there are still two other interesting avenues.

First, in a case where the local authority are not pursuing adoption as the plan, does the most interventionist option left on the table have to be 'nothing else will do'?

Secondly, if the final outcome can only be determined with such a rigorous analysis of the advantages and disadvantages of each option for placement, will Re B-S be deployed in the arguments about interlocutory removal of children?  I am fairly certain that at some point in the next year, an advocate will advance that before a court should sanction removal of a child at interlocutory stage they should be satisfied that ‘nothing else will do'.

If nothing else, Re B-S is likely to keep the Court of Appeal very busy for the next year or so as well as being the most photocopied piece of case-law in family law.

[Footnote - Re D-R Children [2013] EWCC 5 (Fam) has already raised the interesting question of whether adoption is available when the next best alternative of long-term fostering is not bad enough to ‘not do' but is not as good for the child, and whether dual-planning care plans of 'search for adoption for six months, then long-term fostering if unsuccessful' are still possible.]

Andrew Pack is a care lawyer at Brighton and Hove City Council and their in-house advocate. He has also represented parents in care proceedings. He is the creator and author of the Suesspicious Minds child law blog, which deals with public law, private law, social work, serious case reviews and Court of Protection cases -www.suesspiciousminds.com. Andrew can also be contacted via Twitter at @suesspiciousmin.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.