The Court of Appeal are still working their way through the backlog of appeals that were generated after the decision in Re B-S and the flurry of successful appeals that followed (combined with the test for appeals being lowered from 'plainly wrong' to 'wrong'). Some of those appeals have been on the specific point of 'nothing else will do' and probing the boundaries of how literally those words are to be taken, or indeed whether they amount to a test at all.
Three decisions have appeared in the last few weeks, and are important in establishing how far, if at all, appeals based on a failure of the Court to really establish that 'nothing else will do' can be pursued.
All three are really grappling with whether 'nothing else will do' bites (and if so how hard) on an issue where the choice is between foster care and adoption. Specifically, if foster care is an option in the case (and it always is), to what extent does it have to be ‘ruled out’ in order to show that nothing else but adoption will do?
All underlining is the author’s for emphasis.
The first is Re M-H (Placement Order: Correct Test to Dispense with Consent)  EWCA Civ 1396. In this case, the argument was about the merits of foster care as against adoption, and this had been a major argument in the original final hearing. The trial judge had rejected foster care and granted the Placement Order. That decision was upheld by the Court of Appeal when the parents appealed, in essence saying that foster care was an option that would do, and the judge had failed to properly establish that nothing else but adoption would do.
The Court of Appeal in that case acknowledge that decisions about adoption and Placement Orders must be in relation to the statutory provision and that in applying that statutory provision, the Court must take account of the guidance given as to interpretation by the Court of Appeal in Re B-S:
'The "correct test" that must be applied in any case in which a court is asked to dispense with a parent's consent to their child being placed for adoption is that statutorily provided by the sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002 interpreted in the light of the admonitions of the President in Re B-S (Children)  EWCA Civ 1146
which drew upon the judgments of the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33
and rehearsed previous jurisprudence on the point. The "message" is clearly laid out in paragraph 22 of Re B-S
and needs no repetition here.'
However, the Court of Appeal set down a marker that over-reliance on the phrase 'nothing else will do' both at first instance and appeal is becoming visible and is to be deprecated:
'However, I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of "nothing else will do". That is, the orders are to be made "only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests." (See In Re B, para ). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words "nothing else will do" to the exclusion of any "overriding" welfare considerations in the particular child's case.
It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of "nothing else will do" automatically bites.
It couldn't possibly. Placement orders are made more often in anticipation of finding adoptive parents than with ones in mind. Plans go awry. Some adoption plans are over ambitious. Inevitably there will be a contingency plan, often for long term fostering. The fact of a contingency plan suggests that "something else would do at a push", the exact counterpoint of a literal interpretation of "nothing else will do", and it would follow that the application would therefore fail at the outset.
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.'
In essence the phrase 'nothing else will do' does not fully capture the nuance of what the Supreme Court was saying, and that the existence of another option does not rule adoption out – the judge is to fully explore the whole picture and consider whether the options are capable of meeting the child’s needs. Nothing else will do as a concept had to be read in light of the more complex formulation that adoption is appropriate 'only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests'.
In Re M (A child: Long-term Foster Care)  EWCA Civ 1406, handed down 2 days later, the Court of Appeal are again faced with an argument about foster care being an option that could meet the needs of the child, meaning that the court could not be satisfied that 'nothing else will do'. In this case, the trial judge had rejected the application for a placement order, and imposed a care order with a care plan of fostering. (There are some additional complications in that the two supplementary judgments intended to clarify his decision muddied the waters as to whether the judge meant fostering to be a permanent plan or a holding position over a period of time to see if mother responded to therapy.) The Court of Appeal sent the case back for re-hearing.
In relation to the issues about 'nothing else will do', the Court of Appeal said this:
"72. I agree with the guardian that [L's] particular needs involve a decision being made as soon as possible as to whether adoption is appropriate, because her age, at 3 ½, makes it more likely that transfer to an adoptive placement would be more likely to be successful now, rather than later. With respect, this starts to suggest an approach which would contrary, however, to the guidance given in Re B-S and the earlier, recent authorities referred to above (sic). The temptation in every case, where no-one from the birth families will be able to care for a child of 3 ½ in the relatively near future, will be to disregard alternatives to adoption because it is easier to find adoptive parents for younger, rather than older, children….."
The "recent authorities referred to above" are Re B (a child)  UKSC 33
and Re G (Care Proceedings: Welfare Evaluation)  EWCA Civ 965
. What is said in these authorities about the need to consider all the options and to sanction adoption only if nothing else will do must be interpreted with a careful eye to the realities of a child's life. Delay is one of factors that always has to be taken into account in determining any question with regard to a child's welfare, see section 1(3) Adoption and Children Act 2002 (ACA 2002) and section 1(2) Children Act 1989 (CA 1989). But whether an individual child's welfare requires adoption depends on many other factors besides delay. A vital starting point for what those factors might be in a given case is the list in section 1(4) ACA 2002 (and its equivalent for Children Act proceedings in section 1(3) CA 1989) but these are not of course exhaustive lists. It is to be noted that the child's age features in both of them.
The fact that speedy action will improve the prospects of a successful adoption for a particular child of a particular age must take its place in the overall appraisal of the case. Sometimes when considered with all the other factors, it will dictate that the court approves a plan for adoption of the child, even when full weight is given to the important reminders in recent cases, starting of course with Re B, that steps are only to be taken down the path towards adoption if it is necessary.
What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at §77 of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:
"It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests." (my emphasis)
I emphasise the last phrase of that passage ("in her interests") because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child's interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child's interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them.
Article continues below...
Accordingly, if, as it appears may have been the case, the Recorder's reading of the recent authorities led him to put to one side the guardian's view (which he had accepted) that at L's age, a transfer to an adoptive placement would be more likely to be successful now than later, he was mistaken. I accept the submission of Mr MacDonald that the potential impact of delay on L goes beyond simply making it harder to find adopters for her, and includes, for instance, the possibility that it will make it harder for her to form secure bonds with her new carers. All the possible consequences of delaying in making a decision about her future should have been considered along with all the other material factors in the case.'