The case was remitted for rehearing. The ratio decidendi was
that it was inappropriate for the judge to simply adopt the view of the
children’s guardian, and that ‘it was incumbent on the judge to reason it’
(Para 17). Furthermore, it was decided that it was not appropriate for the
court re-make the decision itself on the facts of the case (para [16]).
To support my first submission; that this is evidence of a
change in the law; requires an outline of the principles in
Re B and
Re B-S. The case of
Re
B
placed an emphasis on adoption as a ‘last resort’ (para [104] per Lord
Neuberger) – that appeals were to be allowed where the decision was merely
‘wrong’ and not ‘plainly wrong’ (Overturning
G v G (Minors:
Custody Appeal)
[1985] 1 WLR
647) – and that judgments on whether or not to grant an order involving
adoption were of an evaluative and not discretionary nature (paras [93]–[94]). The
Court of Appeal sought to clarify this position through their dicta in
Re B-S. The court decided on two
adoption 'essentials', these being proper evidence (para [34]) and adequately
reasoned judgments (para [41]).
Despite Munby LJ’s (as he then was) admission in the guidance
judgment that these standards ‘may well impose a more onerous burden on
practitioners and judges’ (para [49]) it is still claimed that these cases did
not change the law, but merely enforced existing principles (‘Impact of Court
Judgments on adoption; what the Judgments do and do not say’ (National Adoption
Leadership Board, 2014)). This seems disingenuous. These judgments have altered
the way that practitioners behave, as can be seen by the
dramatic decrease in adoption decisions, and also in
Re N-D.
It cannot be doubted that the
unequivocal language adopted in
Re B-S
gives solid precedent to support the conclusion that a judgment such as the one
in
Re N-D cannot be adequate.
However, considering the evaluative nature of the judicial task, the fact that
an evidential pathway is in existence suggests that at rehearing the judge must
come to the same conclusion. If this were not the case then the judgment must
contain some discretion. This therefore puts
Re N-D in contravention of the previously accepted principle
in
Lake v Lake [1955] p 336
at 343-4, that an appeal is against the decision and not the reason. It can
therefore be seen that, by encouraging a disproportionate focus on adoption
‘essentials’, other elements of justice have been side-lined and the right to
appeal extended.
This extension of appeal does not serve the aforementioned
definition of justice due to its extremely limited consideration of
repercussions. This is best put by Judith Masson when she states that such a
change should ‘be based on a review of all the issues and their implications
for all concerned, not developed through an adversarial analysis, focusing on
one case (or even a handful).’ (‘The Quality of care proceedings reform’
(2014) 36(1) JSWFL 82, at p 84) Considering the implications for the children involved
in
Re N-D, for instance, gives
rise to the acknowledgement that they have been done an injustice. A delay has
been caused that could potentially jeopardise the success of a placement for A
and D. Further proceedings could take up to forty-two weeks, this, added to the
minimum of twenty-eight weeks already incurred (5 weeks for first hearing and
23 weeks between hearings) makes a delay of 70 weeks. As both A and D are
very young, this substantial delay is far more likely to have a significant
effect on the success of their eventual placement (
Centre for Adoption support and education, ‘The adopted child’s changing view’). Further to these proceedings,
suitable adopters will need to be found. As A and D’s parents originate from
Zimbabwe, making A and D part of the minority ethnic population, this may take
longer than usual.(For reference view;
Adoption Research initiative, ‘Pathways to permanence for black, Asian and mixed ethnicity children’ (2010); in
conjunction with the repeal of s 1(5) of the Adoption and Children Act 2002 (in
England only); and the Department for Education, ‘Draft statutory guidance on
adoption’ (2014)). In contrast to the established principles of justice, we can
see this is clearly against the best interests of the children, as they have no
real prospect of being returned to the care of their parents.
However, this delay could have been reduced had the court of
appeal exercised its discretion to conduct a fresh proportionality assessment.
This leads in to the second submission made here. Following the majority in
Re B (Lords Wilson, Neuberger and
Clarke) it has been made clear that carrying out a proportionality assessment
is discretionary rather than obligatory. Lord Neuberger set out criteria for
the exercise of this discretion:
‘where the Court of Appeal (i) decides that the judge has
gone wrong in some way so that his decision cannot stand, and (ii) feels able
to reconsider, or "rehear", the issue for itself rather than
incurring the parties in the cost and delay of a fresh hearing at first
instance.’
(para [87])
Subsequently, Ryder LJ gave
further judgment on this discretion, stating that the court may ‘fill in the
gaps’ where the error is sufficiently discrete that this would not create
procedural irregularity. His Lordship further states that where there is a lack
of reasoning it is unlikely that this will be appropriate, and that the
decision would essentially be fact-specific (
Re B (Care Proceedings: Proportionality Evaluation) [2014] EWCA Civ 565, at paras [29]–[31]).
It is argued here that this is
still sufficiently wide to allow discretion in the case of
Re N-D, as while the error is a lack of reasoning, it is
merely the failure to show reasons for favouring the evidence of four witnesses
over two (para [15]). This seems relatively minor in the light of such a
monumental decision. However, this was not the opinion that Ryder LJ took.
Rather his lordship stated that it would not be appropriate, ‘from the
transcripts on the facts of the case’ (para [16]). In this case there are only
two options to consider, an evidential pathway is apparent, and all that is
missing is relatively minor reasoning. Furthermore, the court has the power to
rehear evidence (FPR 2010, r 30.12 (2)). If it is not appropriate to exercise this discretion now,
then at what point
will it be
appropriate?
For these reasons, it is submitted
that a duty to re-make certain decisions should be imposed. Such a duty was
preferred by Lord Kerr and Lady Hale, dissenting, in
Re B (paras [116]–[127] and [204]–[205]). The duty that they
imagined was all encompassing. However, the reasons for the submission made
here are not based entirely on convention rights, as they were there (paras [116]–[127]), but rather on the conception of justice discussed earlier. As such a
more moderate solution may be offered; that the criteria laid out by Lord
Neuberger above may be enforced by duty. This may lead the courts to consider
more fully the possibility of re-making the decision, while stopping short of
imposing too onerous a burden.
On analysis of the realities of the repercussions in the
case of
Re N-D there can be
seen a distinct lack of justice for the children involved. Additionally, a
disproportionate focus is given to the procedural factor of an inadequate
judgment. No justice is served by allowing an appeal that, even for the parents,
has no prospect of success. It is apparent that the court’s discretion to re-make
the decision does not provide adequate safeguards against this. As such
rectification of the law that preceded this case is required. In
Re N-D a duty may have provided sufficient
protection; however, this will not be the case in all types of proceedings that
were not imagined in the case law. Therefore, a comprehensive analysis is
required to determine the position of the current law and consider the
repercussions so as to prevent further injustice.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
