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Family Law

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Court of Protection Practice and Procedure Conference 2016

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16 DEC 2014

Care and placement orders – clarification following Re B-S

Care and placement orders – clarification following Re B-S
The President of the Family Division, Sir James Munby, has today handed down judgment in Re R (A Child) [2014] EWCA Civ 1625 in which he has taken the opportunity to address what he refers to as the ‘widespread uncertainty, misunderstanding and confusion’ which has arisen since the decisions in Re B and Re B-S .

Specifically, the President confirms in Re R that Re B-S was not intended to, and has not, changed the law. It has not set any higher hurdle for placement orders. Sometimes adoption is in the best interests of the child and, where that is the case, the courts should not shy away from making a placement order. Children should not be kept with their birth families if it compromises their welfare.

The President clarified the position as follows:
  • Re B and Re B-S definitively set out the law and practice in this field.
  • Cases such as Re M-H , Re M and CM v Blackburn with Darwen Borough Council do not change or undermine the principles set out in Re B and Re B-S, though in some cases they ‘appropriately amplify’ them.
  • The test from Re B-S, that adoption without parental consent is only permissible where ‘nothing else will do’, remains.
  • In accordance with s 1(4) of the Adoption and Children Act 2002, the child’s welfare throughout his or her life is the paramount consideration. As Lord Justice Macur said in Re M-H, that is the aspect of the test which qualifies the concept that ‘nothing else will do’. Nothing that was said in Re B or Re B-S changes or modifies that test. The exercise of balancing the pros and cons of each realistic option is designed to discharge the court’s s 1 duty.
  • Re B-S was primarily directed at what was termed ‘sloppy practice’. As set out in that case, before a care or placement order could be made, it is essential to have:
    • proper evidence, from the local authority and from the guardian, addressing all the realistic options and analysing the arguments for and against each option; and
    • a reasoned judgment evaluating all the options and ‘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 term ‘realistic’ is key. Re B-S does not require further analysis of options which have been legitimately discarded at an early stage in proceedings as being unrealistic. It is not necessary for the judgment to forensically analyse every possibility, only those options identified as being realistically possible – only sensible, practical options should be analysed.
  • If there is only one realistic option, there is no need to follow the full process set out in Re B-S. In those circumstances, the court’s task is to satisfy itself that that one option is in the child’s best interests and that parental consent can properly be dispensed with.
  • ‘Realistic’ in such circumstances means simply realistic – using the normal everyday definition.
  • The proper discarding of unrealistic options at an early stage in the proceedings does not mean that every possible option has to be determined and exhaustively considered before it can be concluded that the option is not realistic.  
  • There is no basis for the recent assumption that more than one negative assessment has to be obtained in order to rule out a potential carer. Second assessments cannot, and should not, be ordered unless they are ‘necessary to assist the court to resolve the proceedings justly’.
  • ‘Necessary’ in those circumstances should be determined robustly – a simple hope that ‘something will turn up’ will not suffice.
  • There is no reason in principle why, after hearing oral evidence at an early hearing, the court cannot rule out one or other of the parents as a realistic option, in the same way as other family members can be ruled out. However, judges should be appropriately cautious in ruling out both parents, or the only parent putting themselves forward.
  • In considering whether a judgment can be criticised as ‘linear’, consideration has to be given to the substance rather than the structure or form of the judgment. A judgment, whether written or oral, is necessarily linear in form if it is to be coherent. Focus should be on the nature of the judicial analysis, where it is necessary that there should have been a ‘balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options’.
  • As a final point, the President pointed out that the National Adoption Leadership Board’s Re B-S Mythbuster was not endorsed by the judiciary.
Speaking of the ruling, Alexandra Conroy-Harris, Legal Consultant for the British Association for Adoption & Fostering, said:

'The British Association for Adoption & Fostering (BAAF) welcomes the judgment today by Sir James Munby, President of the Family Division of the High Court of England and Wales in Re R (A Child), that where adoption is in the child’s best interests, local authorities and courts must not shy away from making care orders with a plan for adoption.

There has been a great deal of uncertainty around adoption of children from care for several months which has directly impacted on some of the most vulnerable children in society with adoption plans falling by almost 50%. This judgement will help both courts and local authorities when making decisions regarding the long term future of these children.

President Munby addresses concerns that children are being placed inappropriately with family members to avoid adoption. He emphasises that ‘”nothing else will do” does not mean that “everything else must be considered”’ and that it is acceptable, if properly done, for family members to be ruled out as realistic potential carers at an early stage of a case.

A child should never be placed for adoption where there is a member of their family who can provide appropriate care for them, but there are some children for whom adoption is in their best interests. We support the President's efforts to improve the standards of evidence and analysis in all cases involving decisions about a child's future, and welcome the clarification that adoption should be properly considered as an option for those children.'
This judgment has been awaited as providing much needed clarification on the law around placement orders following Re B and Re B-S and it certainly seems that the President has taken the opportunity to address the areas of confusion. Of course only time will tell whether this judgment is successful in its desired effect.

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