When adoption without parental consent breaches human rights
1 October 2013
Re B-S (Children)  EWCA Civ 1146 – Read judgment
is the latest Judgment of the Court of Appeal on non-consensual adoption since the Supreme Court authorized a closer scrutiny of first instance decisions In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33,  1 WLR 1911 (see comment by Rosalind English here)
It is also the most authoritative (the case was allocated to Lord Dyson MR, the President of the Family Division and Black LJ) and uses to strong language about the current inattention to Human Rights in care and adoption proceedings.
The Family courts have been bracing themselves for this Judgment since McFarlane LJ gave permission to appeal on 14 June 2013 (Re B-S (Children)  EWCA Civ 813) and deployed the phrase audit to describe the kind of scrutiny of human rights issues required in public law family cases since In re B. As anticipated the Judgment goes beyond the issue for which appeal was given, namely whether the test for permission to oppose an adoption order complies with Article 8. Unusually, this post concerns that part of the Judgment (which is arguably about 60% of the Judgment) which is not about the point in contest in the case but which is, nevertheless, likely to have the widest ramifications.
The Judgment expresses concern about, the recurrent inadequacy of the analysis and reasoning placed before Courts in support of adoption by Children’s Guardians and Local Authorities but also, “in too many judgments.” With reference to the anodyne and inadequate material served up as analysis in many such cases it adds, “This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.”
The Judgment seeks to be a synthesis of the recent quartet of Judgments emanating from the Court of Appeal since Re B namely: Re G  EWCA Civ 965 (McFarlane LJ)
Re P  EWCA Civ 963 (Black LJ); Re V (Children)  EWCA Civ 913 (Black LJ) ; and Re S, K v The London Borough of Brent  EWCA Civ 926 (Ryder LJ) . In particular, it identifies two essentials in proceedings where a Placement Order is envisaged:
(1) proper evidence both from the local authority and from the guardian which address all the options which are realistically possible and must contain an analysis of the arguments for and against each option with a fully reasoned recommendation. They recommend the use of the ‘balance sheet’ first recommended by Thorpe LJ in Re A (Male Sterilisation)  1 FLR 549, 560.
(2) an adequately reasoned judgment by the judge which includes a “global, holistic evaluation of all the options. It cites the Judgment of McFarlane LJ in Re G  EWCA Civ 965 that, there is a danger that the use of words such as draconian may, “inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court.”
Essential Conditions for Non-Consensual Adoption
When considering the legal test that must be addressed before deciding whether a child should be placed for adoption outside his or her birth family, the Court emphasise a number of essential conditions that Judges must have in mind at every stage of the process. Deploying the language of Baroness Hale in Re B they stress that the statute and Article 8 requires that the consent of the parent with capacity can only be dispensed with if, “nothing else will do.”
The Court cites with approval the Judgment of Wall LJ in Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, para 126 where he makes the point that,
“A child’s circumstances may ‘require’ statutory intervention, perhaps may even ‘require’ the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily ‘require’ that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is ‘required’ is adoption.”
The Court also reiterates three points made by Lord Neuberger in Re B.
(1) the child’s interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child’s welfare make that not possible;
(2) the Court must consider all the options before coming to a decision; and
(3) before making an adoption order the court must be satisfied that there is no practical way of the authorities (including the Health Service) providing the requisite assistance and support and Judges must explore rigorously whether a Local Authority is seeking a Placement Order because resource issues make it unwilling to provide the necessary support.
The primary lesson from the Judgment is confirmation of how seriously non-consensual adoption is to be treated in the family justice system. This sits uneasily with the revised PLO and even more so with Part 2 of the Children and Families Bill which is making its way through parliament with their emphasis on the speed of decision making. I suspect that many a skeleton argument in the coming months will be citing the following passage from the Court of Appeal in support of an application for the court to take a step that will take the case outside the 26 week limit,
“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.”
Perhaps the next most cited passage will be the following:
“before making an adoption order the court must be satisfied that there is no practical way of the authorities (including the Health Service) providing the requisite assistance and support and Judges must explore rigorously whether a Local Authority is seeking a Placement Order because resource issues make it unwilling to provide the necessary support.”
Andrew Pack in his excellent post on this case provocatively raises the question whether this can literally be true given that there has to be a limit to the resources that can be expended on any one family. I wonder also whether the Health Service will be drawn increasingly into these cases e.g. over the provision of therapy.
Since the Supreme Court in Re B advocated a closer scrutiny of Adoption Judgments by the higher courts, the Court of Appeal has gone about its work with a will. Thus far the judgments under scrutiny have been written before the Judges had the benefit of Re B. Expectations of those written with the benefit of Re B and the subsequent Court of Appeal Judgments are likely to be even higher. However, from Re B-S it is clear that Local Authorities and Children’s Guardians are expected to help. Given the inherent tendency of the system to over-compensate and given the current pressures to keep all statements etc… as short as possible (the latest missive from the President envisages court bundles being confined to one lever arch file), I fear that the Court (unless checked) could face a substantial quantity of analysis but very little by way of factual information.
I would also question how lay magistrates are expected to make decisions about non-consensual adoption given the level of scrutiny to be anticipated in this area. How can they possibly be said to be applying an independent mind to the problem when even their reasons have to be written by somebody else (usually the Local Authority).
In any event, further Judgments of the Court of Appeal (at least one other on this topic is reserved) may answer some of these questions.
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