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
There is not a watering down of those principles.
If you are in any doubt about
that, the President says so explicitly at para  (underlining mine)
' The core requirements were identified as follows
"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.
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 …
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."
 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.
' 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.
' 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
[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
What about the two steps
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:
' ... 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.