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View from the Foot of the Tower: Two steps forward, two steps back

Date:17 DEC 2014
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Care Lawyer
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) [2014] 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  'Mythbuster' document.

So, is it?

Well, at first reading, one might think so.

It contains passages like this:

 '[41] 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.

[42] 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. 

[43] 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. 

[44] 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 reading of  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 overlooked with  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.

So, Re B-S was not intended to change, and has not changed the law. We also see in the judgment later:

'[55] 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 full focus.

[56] 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 Placement Order. 

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?

'[50] 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 [215]:

"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, [2012] 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 'proportionality'.

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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 [57] (underlining mine)

 '[57] The core requirements were identified as follows (paras 33-44):
"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.

First, there 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 …

The second 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."
[58] 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.

'[59] 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.

'[61] 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 case."'
[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 forward.

What about the two steps back?

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:  

'[44] ... 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.