Time to Call a Halt – New Court of Appeal Guidance in Adoption Cases: Re B-S  EWCA Civ 813
Alex Verdan QC of 4 Paper Buildings and Nicola Harries of Baxter Harries Solicitors draw lessons from new guidance in adoption cases, set out by the Court of Appeal in Re B-S in which they acted for the respondent.
Alex Verdan QC of 4 Paper Buildings and Nicola Harries of Baxter Harries Solicitors
Over a period of just 10 days in July 2013 the Court of Appeal expressed concern about the current practice of family courts in relation to adoption in no fewer than four reported cases1. Practitioners will also be familiar with the decision of the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33 in June 2013.
Matters came to a head when the unanimous judgment of the Court of Appeal was handed down in Re B-S (Children)  EWCA Civ 1146 on 17 September 2013 and it was stated that it was "time to call a halt" to the current practice2. As well as giving clear firm guidance on the approach in cases involving adoption, drawing together all the threads from existing appellate guidance, the Court clarified the test for the granting of leave to oppose an adoption order pursuant to section 45(7) of the Adoption and Children Act 2002.
The key facts in this case were as follows:
- The appellant mother had two daughters, aged 4 and 5 years at the time of the appeal. The children had been born to the mother when she was a teenager and living in vulnerable circumstances such that she was unable to provide safe or good enough parenting.
- The children were removed from the mother's care initially in February 2011. They were made the subjects of final care and placement orders (dispensing with the mother's consent to adoption) in October 2011. Contact between the mother and her daughters ceased in December 2011 and the girls were placed with prospective adopters in April 2012.
- Adoption orders were applied for and the matter came before Parker J sitting in the Chelmsford County Court on 7 May 2013 whereupon the mother sought leave to oppose the adoption orders pursuant to section 45(7) of the Adoption and Children Act 2002. Notably no application had been made for leave to revoke the placement orders under section 24, Adoption and Children Act 2002 or appeal the care and placement orders. The mother's circumstances had changed dramatically: she had left her abusive partner, met her now husband (who served in the forces) with whom she had another child and in respect of whom the local authority had not issued public law proceedings and had written a positive assessment. Notwithstanding these changes, Parker J concluded, applying the welfare test, that it was entirely improbable that the mother would succeed in having the girls returned to her care and refused her permission to oppose the adoption.
- The mother sought permission to appeal which was granted by McFarlane LJ on several bases3, particularly as follows:
- He was concerned that Parker J may have erred by conflating the tests applicable in granting permission to oppose an adoption order pursuant to section 47(5) of the Adoption and Children Act 2002.
- He held the view that the test for granting permission to oppose an adoption order set out in Re W (Adoption: Set Aside and Leave to Oppose)  EWCA Civ 1535 may need to be reconsidered in light of Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33, a decision which had been handed down by the Supreme Court just 48 hours prior to this permission hearing.
- He recognised the duty of the appellate court to review the trial judge's compliance with Article 8 ECHR when making her decision and deemed such review as necessary.
- The substantive appeal was listed before the President Sir James Munby, Lord Dyson MR and Lady Justice Black on 22 July 2013. Ultimately the mother's appeal was refused on all grounds, but Sir James Munby P, giving the Court's unanimous judgment, clarified the approach in cases of this type following a full review of the case law.
The fundamental principles of adoption
The Court of Appeal expressed real concern 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"4. It imposed a more proactive and rigorous duty on first instance judges and emphasised again that non-consensual adoption is a very extreme step – a last resort when nothing else will do.
The three key points made by Lord Neuberger in Re B were cited:
- The child's interests in an adoption case are paramount. Such interests include being brought up by their natural family unless their welfare makes that not possible.
- The court must consider all the options available before coming to a decision.
- The court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which can be made available to them.
The Court of Appeal affirmed these and made it clear that where a court suspects that a local authority's position may be motivated by resource issues, rigorous exploration and probing must take place5.
The Court of Appeal cited two essentials which must be borne in mind when a court is being asked to approve a care plan for adoption or make a non-consensual placement or adoption order:
- A "proper evidence from the local authority and the guardian" addressing all the options and containing an analysis for and against each option with fully reasoned recommendations6. A 'balance sheet' style approach was commended7 and it was warned that the current "sloppy practice must stop"8.
- "An adequately reasoned judgment by the judge"9. Simple lip service and judicial window-dressing were insufficient – proper focussed attention must be given to the specifics. There was a need for a "global holistic evaluation" with the judicial task being to evaluate all the options, taking into account all the negatives and positives of each.
Section 47(5), Adoption and Children Act 2002: the law
After reviewing the relevant case law in detail, the Court of Appeal confirmed that the test for leave to oppose the making of an adoption order remains as follows10:
- Has there been a change in circumstances?
- If so, should leave to oppose be given?
The Court of Appeal stated that the second question is more accurately described as a matter of judicial evaluation as opposed to an exercise of discretion requiring consideration of all the circumstances.
The parent's ultimate prospects of success in resisting the adoption order if leave to oppose is granted and the impact on the child if the parent is not given leave to oppose must be considered.
Misgivings were expressed about descriptors which had been used previously in respect of the section 47(5) test. The words "exceptionally rare circumstances"11 to describe when leave would be given were disapproved, as was the word "stringent"12. It was concluded that "both phrases are apt to mislead, with potentially serious adverse consequences" and that their use should cease13.
Section 47(5) is intended as a meaningful remedy which may provide benefit to both parents and children. Parents should not be discouraged from bettering themselves or seeking to prevent the adoption of their child by a test which is practically insurmountable.
The following guidance was handed down to assist in the determination of section 47(5) applications14:
- Consideration of the prospects of success relates to resisting the making of the adoption order, not ultimately securing the child's return to the applicant's care.
- Any change in circumstances and arguments for leave to be granted are separate issues but in reality will be intertwined.
- If it is concluded there has been a change of circumstances and a parent has solid grounds for seeking leave, the judge must carefully consider whether the child's welfare requires leave to be refused, remembering that it is the child's welfare 'throughout his life' which is paramount. In turn this requires the balancing of all the negatives and positives using the balance sheet-style approach.
- Generally section 47(5) applications can be dealt with fairly on the basis of written evidence and submissions. Sometimes oral evidence will assist although this is unlikely to be routine.
- The greater any positive change in circumstances and the more solid the parent's grounds are in seeking leave, the more cogent the welfare arguments must be if leave is to be refused. The fact a child has been placed with prospective adopters and the mere passage of time are not determinative but are to be considered in terms of the adverse effects of disturbing the current arrangements.
- The argument that leave to oppose should be refused because of the disruption for the prospective adopters and thus the child of pursuing a contested application was expressly dealt with. The guidance given was that undue weight should not be attached to this argument and that any disruptive effects of a section 47(5) application could be minimised by firm judicial case management before the leave hearing. This includes the possibility of obtaining expert evidence prior to the determination of the question of leave. It was suggested that the leave application could be listed with the substantive adoption application to follow or very shortly after the leave hearing.
The paramaters of the 'wrong' test in Re B
The Court of Appeal was clear that, following Re B, the simple test of whether the trial judge was wrong (as opposed to plainly wrong) applied when a parent has sought leave to revoke a placement order or oppose an adoption order. The judgment declined however to clarify other scenarios, such as whether the 'wrong' test applies where a family member seeks leave to participate in proceedings.
Conclusion and practical implications
Re B-S has huge and wide-ranging implications and is already being referred to in family courts up and down the country. It draws the threads together from various existing appellate decisions and demands proper evidence and adequately reasoned judgments in adoption matters. Professionals should use a balance sheet-style analysis weighing pros and cons of each option for the child's future before coming to a reasoned recommendation. Local authorities should ensure that arguments as to inadequate resources do not form the basis of a care plan for adoption, implicitly or explicitly. The judiciary must pay more than lip service to the relevant considerations and properly focus its attention on the specifics.
The test in section 47(5) of the Adoption and Children Act 2002 has been clarified, removing some of the gloss added by the Court of Appeal on previous occasions. The provision is intended as a meaningful remedy.
As far as the revised Public Law Outline is concerned, practitioners will be familiar with the 'in the pipeline' statutory provision that care proceedings are concluded within 26 weeks. Interestingly the Court of Appeal seems to have offered an exception to this requirement if "the court does not have the kind of evidence [the Court of Appeal has] identified, and is therefore not properly equipped to decide these issues"15. In such circumstances an adjournment must be directed even if this takes the case beyond the imposed timescales. How far this exception will be used in practice remains to be seen.
Alex Verdan QC and Nicola Harries
 Re V (Children)  EWCA Civ 913, Re S, K v The London Borough of Brent  EWCA Civ 926, Re P (A Child)  EWCA Civ 963 and Re G (A Child)  EWCA Civ 965.
 Paragraph 30 of judgment.
 Re B-S (Children)  EWCA Civ 813.
 Paragraph 30 of judgment.
 Paragraph 29 of judgment.
 Paragraph 34 of judgment.
 Paragraph 36 of judgment.
 Paragraph 40 of judgment.
 Paragraph 41 of judgment.
 Paragraph 73 of judgment.
 Thorpe LJ in Re W (Adoption: Set Aside and Leave to Oppose)  EWCA Civ 1535.
 Sir James Munby P in Re C (A Child)  EWCA Civ 431.
 Paragraph 68 of judgment.
 Paragraph 74 of judgment.
 Paragraph 49 of judgment.