‘Sloppy practice’ must stop, warns Court

The Court of Appeal – comprising Lord Dyson, the Master of the Rolls, Sir James Munby, the president of the Family Division, and Lady Justice Black – has given important guidance as to the proper approach to applications for adoption orders and for leave to oppose adoption orders.

In an unanimous judgment in Re B-S (Children) [2013] EWCA Civ 1146, the President said:

“We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt.” [30]

The judgment was given in an appeal by a mother against the refusal to grant leave to oppose the adoption of two of her children.  Permission to appeal had been given by McFarlane LJ at Re B-S (Children) [2013] EWCA Civ. 813.

The President spends some time surveying the case law, which includes ECHR jurisprudence and the recent Supreme Court case of Re B (A Child) [2013] UKSC 33, all of which emphasises the point that the severance of family ties inherent in an adoption without parental consent is an extremely draconian step and one that requires the highest level of evidence.  This must be read alongside the principle in both the Children Act and the ACA 2002 that the courts are to adopt the least interventionist approach when dealing with the upbringing of children.

This judgment draws out three key points from the Supreme Court decision in Re B:

• That although the child’s interests are paramount, these interests include being brought up by his/her natural family [26];
• That the relevant statutes impose a requirement that the Court “must” consider all available options when coming to a decision [27];
• That the court’s assessment of the parents’ capacity to care for the child should include consideration of support that the authorities could offer them in doing so [28].

The President says that there are two essentials that must be satisfied before a care plan for adoption can be approved.  The first of these is that there must be proper evidence, which must include a proper analysis for and against adoption.  This is essential to meet the test set out in Re B and the obligations imposed by Articles 6 and 8. It is imperative, the judgment continues, that the “sloppy practice” identified by the Court of Appeal “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.” [40]

The second essential is an adequately reasoned judgment.  This must include a proper balancing exercise and a proportionality analysis.  This judgment criticises the so-called linear analysis often taken by judges in these cases, which is to outline why all of the alternative options are inappropriate and then to conclude that therefore adoption is the only viable option:

“We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) 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.”

Having considered how the comments in this judgment fit into the current reforms of the family justice system, Munby P. concludes that there is no incompatibility but that:

“If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. 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.”

The judgment goes on to consider the law specifically relating to s.47(5) ACA 2002 including Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535 and related case-law.  The test for leave remains the two-stage test identified in Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069.

However, McFarlane LJ, in granting permission to appeal, had been troubled in particular by Thorpe LJ’s use of the phrase “exceptionally rare circumstances” in Re W in relation to the willingness of a court to allow for the possibility of disrupting a placement once the children in question were already placed with a prospective adoptive family.  This court shared his concern that this was no longer still tenable in light of the Supreme Court decision in Re B, given that the jurisdiction under s.47(5) was only triggered once children had been placed for adoption and such a placement must have endured for at least ten weeks.  Section 47(5) was intended to afford parents a meaningful remedy.

The President goes on to outline what he calls the ‘proper’ approach to be followed in s.47(5) applications, which is essentially to follow the two-stage process identified in Re P.  In relation to the second stage, whether leave should be given if there has been a change of circumstances, the court would need to consider both the parent’s ultimate prospect of success and the impact on the child if the parent is, or is not, given leave to oppose.  As always the child’s welfare is paramount.  In relation to the balancing exercise to be carried out, the President suggests a number of factors at paragraph 74.

Following the comments by McFarlane LJ when he granted leave to appeal, the President also considers the role of the appellate court in hearing an appeal against a refusal of leave under s.47(5) in light of Re B.  It is clear from the authorities that the simple test as to whether the trial judge was ‘wrong’ applies where the issue is an evaluative issue rather than a matter of discretion, such as whether threshold is established and, if so, whether there should be a care order.  Given the nature of the issues in a s.47(5) application, and their potential gravity, and the clearly evaluative nature of the judicial task, he concludes that the test in this type of appeal requires the Re B approach, that is, the appellate court must consider whether the trial judge was ‘wrong’.

Finally considering the decision of Parker J which was the subject of this appeal, the view of the Court of Appeal was that in the circumstances of this case, none of the 6 grounds on which permission was given were made out and the appeal was dismissed.

Maureen Obi-Ezekpazu of Tooks Chambers (instructed by the Bar Pro Bono Unit) represented the appellant mother. Alex Verdan QC of 4 Paper Buildings (instructed by Baxter Harries Solicitors and Essex County Council) represented the respondents (the adopters and the local authority).

For the full judgment and summary by Sally Gore of 14 Gray’s Inn Square, from which this news item is derived, please click here.

SOURCE: Family Law Week