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M-H (A Child) [2014] EWCA Civ 1396

Appeal by mother against placement order in respect of 6 year old child on the grounds that the judge had not applied the correct test in dispensing with the parents' consent and making a placement order; and if she did so, had not adequately analysed the expert evidence in conducting a proper balancing exercise in her contemplation of long term fostering as opposed to adoption. Appeal dismissed.

A mother appealed against the making of placement orders in relation to her six year old daughter. The mother submitted that the judge had (a) applied the wrong test to dispensing with the parent's consent and making the placement order and (b) failed to adequately balance the expert evidence.

At the appeal, the mother conceded the child could not return to her care but wanted the child to be placed in long-term foster care so that contact could be maintained.

The Court of Appeal dismissed the appeal. The case was a finely balanced one but looking at substance of the judgment (as opposed to semantics) the judge took the correct approach both the test and the expert evidence.

The Court of Appeal made further comment on the application of the 'test', emanating from Re B (2013) UKSC 33, that placement orders can only be made if nothing else will do. The Court of Appeal highlighted:

(1) The test of 'nothing else will do' must be read with the proviso that placement orders are to be made "only in exceptional circumstances and where motivated by the overriding requirements of the child's best interests".

2) The existence of another credible option does not mean that 'nothing else will do' bites. A contingency plans, or 'something else would do' does not mean that a plan for a placement order should automatically fail.

(3) The fact that there are advantages to other options again does not mean that an application for a placement order will fail.

(4) The judge must assess the whole picture in light of the child's needs and the harm that child has suffered.

Summary by Ayeesha Bhutta, barrister, Field Court Chambers

Neutral Citation Number: [2014] EWCA Civ 1396


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/10/2014

Before :


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M – H (A Child) 
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Ms N Tawfik (instructed by P B Law) for the Appellant
Miss B Gorden
(instructed by West Sussex County Council) for the Respondent

Hearing dates : 15 October 2014
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Lady Justice Macur DBE :

1. This is the mother's appeal against the placement order made by HHJ Jakens on 16 April 2014 in relation to her daughter S.   The issues in this appeal are whether the first instance judge :

(i) applied the correct test in dispensing with the parents' consent and making a placement order; and if she did so,

(ii) adequately analysed the expert evidence  in conducting a proper balancing exercise in her contemplation of long term fostering as opposed to adoption and sufficiently articulated the same in her judgment.

2.   S is now 6 years 10 months old. She cannot be cared for by either of her parents, now or in the foreseeable future. She has been in foster care for more than 18 months.

3.   Her mother, the appellant, has long standing issues with drug addiction and has been the victim of appalling domestic violence at the hands of the father and a subsequent partner M. She is attempting to address the first with some good if not complete success. The second is dependent to large extent on her ability to separate completely from the perpetrators of violence. This is proving more difficult. She was driven to acknowledge the adverse impact upon S on both counts.

4.   S lived with her mother until removal in April 2013. The mother would obviously wish to resume her care but, however reluctantly, concedes through her counsel, that this is a case where she was rightly ruled out as a viable option to parent her child. This is realistic. That is not to say that she does not seek to maintain the most generous contact regime possible with her daughter, obviously the more likely if S is placed with long term foster parents than with adoptive parents.

5.   Her father attended at the appeal before us. The relationship with the mother is said to be at an end. His physical attendance with the mother tends to indicate his support for her cause. A successful outcome in this appeal for the mother will undoubtedly benefit his continuing contact with S.

6.   Ms Tawfik, who appears on behalf of the mother, has advanced the appeal with great skill. She did not appear at first instance but clearly has mastered her brief in order to bring to our attention those parts of the judgment that suggest that the judge applied the wrong test and, in the alternative, aspects of the evidence which she says have been omitted by the judge in reaching her ultimate determination in this difficult case. Ms Golden has appeared on behalf of the local authority.

7.   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)  [2013] EWCA Civ 1146 which drew upon the judgments of the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 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.

8.   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, paragraph 215). 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.

9.   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.

10.   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.

11.   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.

12.   In this case Dr Briers, Chartered Clinical Psychologist, in answer to the judge's question as to whether "nothing else will do", responded that "if the question is 'whether anything but the option that is judged ultimately as the most likely to meet her needs will do, and if the option that is most likely to meet her developmental needs and to protect her from further harm turns out to be adoption, then that would be the recommended course". I find it a somewhat confusing answer but interpret it to mean that he takes "nothing else will do" to be a comparison test of benefits between available options with the answer provided in the final tally rather than assessing the necessity to challenge whether  the least interventionist option will be capable of meeting the particular child's welfare needs. I agree with Ms Tawfik that this is an unacceptable dilution of the correct test.

13.   Ms Tawfik argues that, regardless of her correctly formulated self direction in accordance with recent authority and statute,   the judge has adopted this lesser test as is clear from comments in her judgment. Specifically she draws our attention to the judge's recitation of the experts (clinical psychologist, children's guardian and social worker) views that "placement for adoption as the option most likely to meet [ S]'s needs"; that she herself "was ultimately persuaded by the social worker's view that the safest option for adoption" ; and that it was "imperative for her best outcome". These arguments well made deserve careful consideration. The correct exposition of the applicable test in a judgment is one thing, its application quite another.

14.   I agree, that at first blush there is phraseology within the judgment which supports the argument that the judge may have adopted Dr Brier's test. (In passing and in particular, one section of the judgment upon which Ms Tawfik (and Ms Dewhurst) relied appeared to clearly evince the point, but the court was satisfied after investigation that the "approved judgment" upon which Ms Tawfik relied differed in a significant respect to that actually approved by the judge).    If the judge did so err, the placement order cannot stand.

15.   However, it is, of course, crucial to stand back and view the articulated process as to substance and not semantics. In doing so I am not persuaded that Ms Tawfik can make good this plank of her appeal for this reason. The concept of  "last resort" and "best outcome" is not mutually exclusive. "Best outcome" may imply a comparison between two or more possible viable options whereby the phrase indicates a preference not a necessity. Equally it may apply to the case where there is in reality only one such option in accordance with the overriding needs of the particular child which inevitably will coincide with best outcome from a range of imperfect solutions.

16.   In paragraph 114 of her judgment, the judge says "I do accept the analysis of Dr Briers that adoption is the best option to meet [S]'s needs and, in my judgment, nothing else will do". (My italics). Consequently I am satisfied that the judge applied the correct rationale and was not distracted by any test deployed by Dr Briers, the Children's Guardian or social worker's to reach their respective views of 'best outcome' .  

17.   Ms Tawfik accepts that the two remaining grounds of appeal as drawn amount to the issue identified in paragraph 1(ii). I mean no criticism of her lucid written and oral arguments but reduce them in terms that she submits that the judgment under review is not adequately reasoned in accordance with Re G (A Child) [2013] EWCA Civ 965 at paragraph 54 and consequently discloses that insufficient, if any regard has been paid to crucial evidence that would impact upon the balancing exercise the judge performed or otherwise is insufficient in merely adopting the views and balancing exercises of others.   

18.   I agree with Ms Tawfik that it is not sufficient for a judge to blindly follow the opinions of others, however eminent or experienced the expert. In this case, as indicated above, Dr Briers appears to have adopted a different approach to that which the judge must employ. Nor is it acceptable for a judgment to merely record that he/she accepts the views of X, Y or Z without more. The process and reasons leading to decision must be adequately articulated. That is not to say that the judge must regurgitate every aspect of the evidence laid before him/her with commentary to make their judgment unassailable in this court. What is necessary to see is the judge's evaluation of the evidence that has been led. This may expressly refer to specific pieces of evidence but may otherwise imply their assimilation.

19.   Ms Tawfik complains that the judgment does not "explain why she accepts [Dr Briers] analysis, which of the various advantages and disadvantages in relation to adoption and foster care identified by Dr Briers (and others) she accepts or rejects, and why, nor the weight she has placed on the different factors" and had "not taken into account some significant qualifications or concessions made by Dr Briers in cross examination or considered how these might impact on his overall analysis". She refers us to the transcript of Dr Briers' evidence to attempt to make good these points, particularly that part of his evidence in which he acknowledges S's resilience and adaptability as equally applicable in the long term fostering scenario as with adoption. She suggests that the judge has adopted a binary approach.

20.   Ms Tawfik's submission relating to Dr Briers evidence is superficially convincing. However, on closer inspection it is proved unhelpful to extract specific answers from the context of  his evidence as a whole. That he did accept certain propositions is clearly demonstrated, but he did so with caveats that did not undermine his overall view or the thrust of his report.  The judge describes his analysis as "very careful and nuanced balanced" and "subtle". She later records that in "skilful cross examination" he conceded "there were merits to both plans" and "clearly advised in relation to the pros of long term foster care, but saw that the balance between her old and new life would be a delicate one to manage…". In these circumstances I do not think it can be said that absent specific reference to one part of his oral evidence that the judge omitted to consider the impact of cross examination upon the basis of his advice to her. For my part I see no reason why she had needed to distinguish it.

21.   There is no one part of the judgment which deals exclusively with S.  However, the judge's assessment of S's predicament and the consequences that flow from it is readily divined from the comments she intertwines throughout. That is, she had been exposed to the extreme violence of her mother's partners and the previous turbulence created by her addictions (paragraphs 18 – 31); she has a "strong attachment with her mother… a very significant feature of this little girl" (paragraph 67); she is a "little person  in waiting" desperate for answers (paragraph 82).  I conclude that these were the features that the judge evaluated to bear particular weight in the balancing exercise. They appear to me to be rightly identified and certainly not wrong.

22.   It is correct that the judgment records the overall views and opinions of  the experts  - Dr Briers, Children's Guardian and social worker – and accepts or , in one specific instance regarding S's wishes, rejects them.  This does not mean that the judge has abdicated her responsibility to conduct the balancing exercise or approached her task in linear fashion. I am not persuaded that the judge has failed to analyse their advice and the other evidence in the case and bring to bear her own analysis upon it. This is patent in reading paragraphs 100 to 123 of her judgment in which she does adequately reference the pros and cons of the options and she does pay all due regard to the pertinent welfare factors. 

23.   As the judge comments in paragraph 117 "It is not likely that [S] can understand the momentous implications of the options she faces and I am required, in her interests, to override what is her dearest wish" ( that is to return to her mother).  She is obviously sympathetic to the plight of the mother, still young and blighted by her own childhood and subsequent  experiences  but who has some  positive qualities, not least her attachment to S,  and will hopefully develop more. I perceive quite clearly from this judgment that this judge genuinely and regretfully felt literally driven to the order she made.

24.   A case which was as finely balanced as this may well have resulted in another judge reaching a different decision. However, a judicial evaluation made on the basis of all relevant data in accordance with the correct legal principles is difficult to displace. Despite the commendable advocacy on the part of Ms Tawfik before us, and the persuasive advocacy of Ms Dewhurst in securing permission to appeal,  I am satisfied that on  review of  this judgment it indicates that due regard was had to all the evidence and the correct legal principles applied. The order cannot be said to be wrong. I would dismiss this appeal.

Lord Justice Patten :
25. I agree.

Lord Justice Laws :
26. I agree.