NOTHING ELSE WILL DO – WHERE ARE WE NOW WITH Re B AND Re BS? Andrew Pack (Guest Speaker) who is the award-winning Legal Commentator of the year 2014 and author of “ suesspiciousminds ” blog will look at the rapidly developing jurisprudence relating to placement orders and adoption. Adam Smith , Crown Office Row, Brighton. will look at the British tradition of adoption orders, how Re B impacted on the UK system, and how other European States provide long term care for their children: Welcome. The webinar will start shortly. You should hear some background music. If not, please refer to the instructions on your email or for troubleshooting, please call James Hart on: 01273 625625
Introduction By Adam Smith
Adoption SEMINAR What the heck is going on?
No no no no no, yes
The DFE take on ADOPTION From the July 2013 statutory guidance The local authorities that are most successful in finding adoptive families for looked after children will generally be those with a very clear care planning process that always considers adoption as a possible permanence option and not an option of last resort;
And LADY HALE’s TAKE Nevertheless, it is quite clear that 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. Re B (2013)
That in part derives from European authority There are different approaches throughout Europe as to what happens with children whose parents have caused them harm, but this is the ECHR line in the sand measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child's best interests Y v UK
There’s SOME DEBATE ABOUT WHETHER WHAT LADY HALE SAYS IS NEW LAW Or whether it is just a refresh or reminder of what the existing law was. But what IS clear is that Lady Hale’s principle (or test) is still valid. Look at what the President said 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."
And if you were in any doubt Para 58 …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.
Quick linear v holisitic McFarlane LJ identified in Re G, a problem with the traditional method of deciding that adoption is the “last resort”, which was to work your way through the options and ruling them out, deciding that if adoption was what was left after that, it WAS the last resort
Possible new carers – linear assessment Pig Farmer (smelly, chance of being eaten by pigs) Lawyer (boring, unpopular at parties) Formula One Racing Driver - that’s what is left, so I must become a Formula One Racing driver But what if I do as McFarlane LJ suggests and turn the list upside down?
Formula One Racing Driver - I can’t drive. (To be fair, there’s not that much need for “reversing round a corner” in Formula 1, but still, I suspect I would be failing the interview process at that stage) Lawyer – god, it really can be very boring Pig-farmer - so that leaves pig-farming and I should become a pig farmer Thus, Re G, and Re B-S et al make it plain that it has to be a HOLISTIC approach, looking at the pros and cons of each of the realistic options before ruling any in or out
When LOOKING AT COURT OF APPEAL CASES ON ADOPTION SINCE JUNE 2013, I like to think about THIS GUY
No, NOT HIM. THIS GUY
Here we have our And pre Re B, they are roughly in the court of appeal middle. They hear an adoption case and might say yes, or might say no. It all depends on the facts.
It’s JUST A JUMP TO THE LEFT
And then a step to the right
Now, put your hands on your hips
And we’ll leave it before the pelvic thrusts Because my animated gif of Court of Appeal Judges doing pelvic thrusts… Would really drive you insane
Quick run- through of the “jump to the LEFT” cases 2013 Re S (Brent) - Court had not had the proper evidence to decide between the options of Adoption and SGO, appeal against Placement order granted Re P - Court had failed to conduct proper balancing exercise, appeal granted Re G - wrong to conduct a linear exercise “ruling out” mother and leaving adoption as only option left – doing the exercise the other way round could produce the opposite outcome. Must be holistic. Appeal granted Re S – Court had not had all of the information necessary to properly conduct balancing exercise. Appeal granted
Jump to the left Re B-S - I think you all know about that one – sets up the rigorous requirements of both social work and Guardian evidence, and of judgments – to properly weigh each of the options for the child as a holistic exercise (The mother in that case lost the appeal) Re Y – Court had failed to weigh up all of the options, appeal granted Re C - Judgment was flawed on Re B-S, but just squeaked through when reading totality of it (appeal failed) Re F - Court was wrong to make a Placement Order where there was doubt about whether the plan could be delivered – appeal granted Re E – Court had been wrong to make Placement Order and had not looked at the proportionality of the outcome against the evidence – appeal granted Re A – wrong to impose conditions on a Placement Order, but where the Judge thought that such conditions were necessary it would be wrong to make the Placement Order at all
2014 Re S – Court was wrong to make Placement Order and should have assessed the father more – appeal granted Re P – court was wrong to have ruled out relatives outside of the UK – appeal granted Re T (my particular favourite) - Court had failed to explain in its judgment why the baby could not wait two years for mum to finish her prison sentence. (this appeal was granted, and sent for re- hearing. The appeal took ELEVEN MONTHS to be processed, and child was in limbo throughout) KS v Neath Port Talbot – Court’s failure to properly assess the grandmother who came forward last minute made the judgment flawed – appeal granted. Re ND – court failed to carry out adequate assessment of the children’s needs – appeal granted Re FM – Court had failed to give any reasons why Placement Order was warranted – appeal granted
Step to the right – small steps M v Suffolk 2014 - the judgment did not contain a neat balancing of welfare factors, but taken as a whole it had grappled with the issues, appeal refused Re K and KT – judge had properly addressed the issues and the grandparents allegations of improper processes were not bourne out. Appeal refused Re W - Court was entitled to make Placement Orders on oral evidence of the experts, although their written evidence had been against it (judgment not very strong on that change of evidence, Court of Appeal had to infer it). Appeal refused. Re F - Court had been asked by parents to make an SGO rather than Placement Order, and had not been wrong to make the more interventionist order – child’s need for security tipped the balance - appeal refused
And now the big ones on “nothing else will do” Re M-H (an appeal from Brighton Family Court). On deciding that adoption, rather than long- term fostering was the safest option and met the child’s needs and thus “nothing else will do”, the Court had not diluted the Re B test and was right in law. The totality of Lady Hale’s formulation had to be applied, not just the shorthand “nothing else will do” The “holistic” balancing exercise of the available options that must be deployed in applications concerning adoption is not so as to undertake a direct comparison of what probably would be best but in order to ascertain whether or not the particular child’s welfare demands adoption. In doing so it may well be that some features of one or other option taken in isolation would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits. But this is not to say that finding one or more benefits trumps all and means that it cannot be said that “nothing else will do”. All will depend upon the judge’s assessment of the whole picture determined by the particular characteristics and needs of the child in question no doubt often informed by the harm which s/he has suffered or been exposed to.
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