England and Wales

Held

In Re M-H, CM v Blackburn with Darwen BC & Re R the mothers’ appeals were rejected and in Re M the local authority’s appeal was allowed and the case remitted to the county court for rehearing.

In each case the parents relied on the direction from Re B that severing the relationship between parent and child can be justified only ‘where nothing else will do’. The Court of Appeal points out that in such cases the arguments frequently omit a significant qualification of the test – that such an order can be made ‘in exceptional circumstances and where motivated by the over-riding requirements pertaining to the child’s best interests’.

In Re M-H Macur LJ points out that the fact that there is another credible option does not mean that the test of ‘nothing else will do’ automatically bites. The holistic balancing exercise is not a direct comparison of what would probably be best for the child, but is carried out to ascertain whether the child’s welfare demands adoption. Equally, a finding that another option has some benefits does not mean that ‘nothing else will do’. She also deals with contingency plans and the argument that the existence of a contingency plan means that ‘something else would do at a push’. As this is the exact counterpoint of literal interpretation of ‘nothing else will do’ any application with a contingency plan would fail at the outset. She points out that adoption plans cannot be guaranteed and often long-term fostering will have to remain a possibility.

In Re M the judge at first instance had given three judgments, one which said that the child could not remain in temporary foster care while the mother underwent treatment, but then another which suggested that if the mother was successful in engaging with treatment she should be able to apply to discharge the care order in two years. He understated the disadvantages of long-term foster care for a child of three and downplayed the advantages of early placement for adoption. It was unclear whether his primary reason for preferring foster care was in order to preserve between mother and child or to keep open the possibility of reunification. The Court of Appeal thought that it may have been the Recorder’s reading of Re B and Re B-S which led him to put to one side the guardian’s submissions on the advantages of early placement for adoption. Black LJ quoted para 77 of Re B as ‘an important reminder that what has to be determined is not simply whether any other course is possible, but whether there is another course that is possible and in the child’s interests’.

In CM v Blackburn with Darwen BC the judge had conducted a global holistic analysis in accordance with the requirements of Re B and Re B-S, but the mother argued that her conclusion that nothing else but adoption would do was inconsistent with a care plan that envisaged the possibility of long-term foster care becoming an option if adopters were not found within six months. Ryder LJ referred to the judgment in Re T (Placement Order) [2008] EWCA Civ 248, quoting ‘mere uncertainty as to whether an adoption will actually follow is not a reason for not making a placement order’. He points out that there is no requirement on a local authority to include a contingency plan in their care plan, but that many do so as a matter of good practice. He says that it is not the court’s function to fix the local authority’s timetable for implementing the care plan.

Ryder LJ emphasises that Re B and Re B-S do not change the law, create a new test or a new presumption against adoption. They explain the existing law and set out the decision-making process that the court should follow. It remains the case that twin-track or dual planning can be appropriate; it recognises that there is a possibility of a plan for adoption failing and provides for an alternative. It is different from deciding that something other than adoption is required.

In Re R McFarlane LJ gives the judgment on the facts, dismissing the mother’s complaint that the judge carried out a linear decision-making exercise. There were only two available options for the two-year-old child: return to the mother or adoption. As the judge had found that the child could only be returned to the mother if they had 24-hour support, that option was not realistic and only adoption would do. He does suggest that when considering a care plan for adoption it would be appropriate to apply the welfare checklist from the Adoption and Children Act 2002 rather than using the welfare checklist from the Children Act 1989 for the care order and then the 2002 checklist for the placement order.

Munby P then uses his judgment to address wider issues in the ‘post Re B-S landscape’. He accepts that there has been widespread uncertainty, misunderstanding and confusion, referring to the impression that there is a higher hurdle to meet before adoption can be considered, that the phrases ‘adoption is a last resort’ and ‘nothing else will do’ have become slogans taken to extremes and that adoption should be avoided if at all possible.

He also refers to a concern that there is a ‘bending over backwards’ to keep the child in the family if at all possible, a feeling that to become ‘B-S compliant’ more assessments need to be carried out, and that two negative assessments are required before a kinship carer is ruled out.

Munby P emphasises that Re B and Re B-S do not change the law. Where adoption is in the child’s best interests, local authorities should apply for placement orders and courts should make them. ‘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.’

He refers to the decisions in Re M-H, Re M and CM v Blackburn with Darwen BC (above) with approval and emphasises that nothing in Re B and Re B-S changes the law, which remains that the paramount consideration is the child’s welfare throughout its life. He points out that Re B-S was directed towards improving sloppy practice and repeats the core requirements of proper evidence analysing the pros and cons of all the realistic options and a global, holistic and multi-faceted evaluation of the child’s welfare. He emphasises the word ‘realistic’, Re B-S does not require the pursuit of options which can legitimately be discarded, after proper evaluation, as unrealistic. ‘Nothing else will do’ does not mean that “everything else” must be considered.

The President points out that the PLO requires potential family carers to be identified and assessed at an early stage of the proceedings. The interim processes of the PLO then allow a judicial ‘whittling down’ of possible carers to a shorter list of realistic options. He points out that there is no right to an assessment of the family’s choice rather than one carried out or commissioned by the local authority and emphasises that no second assessment can be ordered unless the court finds that it is necessary to resolve the proceedings justly.

Comment

The context in which these judgments were made is that of an approximately 50% reduction in the number of children with ‘should be placed for adoption’ decisions, and a corresponding reduction in the number of placement orders being sought and made. It has been thought that this is a direct result of the misinterpretation of Re B and Re B-S along the lines referred to by the President in Re R. Local authorities, and possibly judges at first instance, have been frightened away from adoption as a possibility for children by the forcefulness of the judgments and this appears to have had a significant effect on decision-making for children.

These recent judgments can be seen as the judiciary’s efforts to redress the balance and reassure local authorities and others that, where the child’s welfare requires it, adoption remains a real placement option for children.

Alexandra Conroy Harris, Legal Consultant (England), BAAF, prepared these notes.