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Judicial Window Dressing and Balance Sheets – Where is adoption post-Re B-S?

Andrew Pack, care lawyer with Brighton & Hove City Council, considers the effect on adoption of the Court of Appeal’s landmark judgment in Re B-S.

The Court of Appeal decision in Re B-S (Children) 2013 EWCA Civ 1146 was a genuine landscape-changing decision which will affect a wide range of family cases.  In other recent adoption cases, laying the foundation for Re B-S, the Court of Appeal acknowledged that in the short-term there would be substantially more appeals in relation to adoption cases and that probably more of them would be successful.

The decision in Re B-S relates to several areas, which for ease of reference are broken down into the following:

  1. The appeal itself, and the test for 'leave to oppose' cases 
  2. The need for rigour in social work evidence and judgments
  3. Where the 'bar' is in terms of permanent separation from a parent 
  4. Where this leaves the 26 week target.

1. The appeal and the test for 'leave to oppose' cases
The subject of the appeal was a refusal by Parker J of the mother's application for leave to oppose an adoption order.  In a case where a placement order has been made by a court, and then a subsequent application is made for an adoption order, the parent does not have an automatic right to challenge the making of an adoption order and needs leave of the court to mount such opposition.

There has been a substantial body of case law in relation to the high hurdle a parent needs to cross to obtain such leave, in effect being a two-part test:

(a) Has there been change since the original order was made  (which is an objective test)?
(b) Does that change justify reopening the case, with particular regard to the impact it might have on the child and the placement (this being a decision for which the child's welfare is the paramount concern)?

This test, used for applications for leave to oppose the making of adoption orders, is markedly similar to other challenges by a parent to final orders made by a court in care proceedings – leave to apply to revoke a placement order, and leave to apply to discharge a special guardianship order; though there is no such hurdle or barrier for a parent to surmount to seek to discharge a care order, where the case is simply heard and determined on its merits.

The Court of Appeal view was that, in looking at the previous decisions, it was important that the statutory entitlement to apply for such leave to oppose was not a merely notional entitlement which a parent could never actually achieve in reality.  The Court of Appeal also considered that the second limb of the test – considering whether the changes justified reopening the case – might in the past have placed too much emphasis on stability, and not enough on the concept that placement away from the birth parents was a last resort, only to be used where 'nothing else will do'.

"70. Section 47(5) is intended to afford a parent in an appropriate case a meaningful remedy – and a remedy, we stress, that may enure for the benefit not merely of the parent but also of the child. Whilst we can understand what lay behind what Thorpe LJ said, we think that his use of the phrase "exceptionally rare circumstances" carries with it far too great a potential for misunderstanding, misapplication and indeed injustice for safety. The same, if in lesser measure, applies also to the word "stringent". Stringent, as we have said, is a word that appropriately describes the test that has to be surmounted before a non-consensual adoption can be sanctioned. It is not a word that comfortably describes the test that a parent has to meet in seeking to resist such an adoption.

71. Parliament intended section 47(5) to provide a real remedy. Unthinking reliance upon the concept of the "exceptionally rare" runs the risk – a very real and wholly unacceptable risk – of rendering section 47(5) nugatory and its protections illusory. Except in the fairly unusual case where section 47(4)(b)(i) applies, a parent applying under section 47(5) will always, by definition, be faced with the twin realities that the court has made both a care order and a placement order and that the child is now living with the prospective adopter. But, unless section 47(5) is to be robbed of all practical efficacy, none of those facts, even in combination, can of themselves justify the refusal of leave."

And the Court of Appeal provides guidance for the proper application of the two-stage test:

"73. There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.

74. In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent's ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child's welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:

i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent's care.

ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child's welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the "last resort" and only permissible if "nothing else will do" and that, as Lord Neuberger emphasised, the child's interests include being brought up by the parents or wider family unless the overriding requirements of the child's welfare make that not possible. That said, the child's welfare is paramount.

iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child's welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ's 'balance sheet' is to be encouraged.

v) This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent's grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child's welfare must be if leave to oppose is to be refused.

vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.

viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child "throughout his life". Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that "the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems." That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.

x) We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: "the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable."

In relation to the role of appellate courts, the Court of Appeal makes it plain that post-Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, it considers that the role of the court in deciding the second limb of the test is one of judicial evaluation, not merely judicial discretion.  The significance of that, of course, is that exercises of judicial evaluation need now only be wrong to be overturned on appeal, whereas judicial discretion needs to be plainly wrong.

Following those two cases, the law now is that judicial decisions as to (i) whether threshold is met and how, (ii) the making of final orders, and (iii) determination of applications for leave are exercises of judicial evaluation (rather than judicial discretion) and thus they need only be demonstrated to be wrong to be overturned on appeal, when historically the test for all three on appeal would have been that the original decision was plainly wrong.

That does not leave many other decisions – interlocutory orders must inevitably involve the same sort of process as final orders, and really all that is left is a decision by a court to approve or refuse an expert assessment. We will no doubt find out in due course whether such an exercise, undertaken with the guidance set out in Rule 25 of the Family Procedure Rules 2010, is a judicial evaluation or a judicial discretion  (my own inkling is that it is the former, and that to all extents and purposes, any decision made in care proceedings has the appeal test of "Was this decision wrong?" ).

2. The need for rigour in social work evidence and judgments
This aspect occupies the majority of the judgment. It is plain that the Court of Appeal were using this particular case to draw together various strands from other 2013 appeals and in particular the judgment of Baroness Hale in Re B (A Child) (Care Proceedings: Threshold Criteria) as it related to proportionality.

The Court of Appeal, citing Ryder LJ's judgment in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, considered a formulation which one commonly sees in social work evidence as rationale and justification for a placement order to be made:

"a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]'s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood ....

"Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …" [para 38]

The Court of Appeal in B-S considered this  as anodyne, inadequate and sloppy, and that it is "simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high."

Then, drawing together threads from earlier judgments of the Court of Appeal, they set out what they do expect to see, from social work and Guardian analysis in final evidence:

"34. First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:

"evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children."

[from Ryder LJ's judgment in Re S, K v The London Borough of Brent [2013] EWCA Civ 926:]

 "An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options".

[from McFarlane LJ's judgment in Re G (A Child) [2013] EWCA Civ 965:]

"the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family".

[and from Black LJ's judgment in Plymouth CC v G [2010] EWCA Civ 1271:]

"In some respects the reports of the guardian and the social worker, and the social worker's statement, are very detailed, giving information about health and likes and dislikes, wishes and feelings. However there is surprisingly little detail about the central issue of the type of placement that will best meet the children's needs … In part, this may be an unfortunate by-product of the entirely proper use, by both witnesses, of the checklist of factors and, in the case of the social worker's placement report, of the required pro forma. However, the court requires not only a list of the factors that are relevant to the central decision but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children, and a fully reasoned recommendation."

The Court of Appeal then turned its gunsights on the judges, and made it plain that the days of stock phrases of 'judicial window dressing' had to come to an end:

"45. ..a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is 'the most draconian option', yet does not engage with the very detail of that option which renders it 'draconian' cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the 'draconian' nature of permanent separation of parent and child and they frequently do so in the context of reference to 'proportionality'. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child's welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case."

What was needed was a

"'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."   [paragraph 44]

The Court of Appeal also made it plain that the traditional linear method, whereby the local authority and indeed the court approached the case by considering whether the child could safely be placed with a parent, ruled that out, then considered family members, ruled those out, and were then left with adoption as the only option left, is not appropriate and could lead to great injustice.  It is only by genuinely unpacking the concepts and ideas that led to the stock phrases and applying them to the case in question that could lead to a proper comparison of the advantages and disadvantages of each placement option for a child and a proper conclusion as to which was appropriate.

3. Where is the 'bar' in terms of permanent separation from a parent?
Unsurprisingly, the Court of Appeal adopted Baroness Hale's formulation that in order to consider making a placement order, the court must consider proportionality and be satisfied that "nothing else will do".

"22 The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215."

Much of the above section, in terms of the level of rigour and cogency of analysis and the proper consideration of each possible option (which incidentally can and MUST include an analysis of why long-term fostering might be a better or worse option for the particular child than adoption – an issue which has traditionally been very hurriedly dismissed based on age alone) deals with where that 'bar' sits forensically.

But there is an additional important consideration in the judgment.

To continue the 'bar' analogy, traditionally care cases have proceeded on the metaphor of a high jump bar, set at a level of 'good enough parenting'. If a parent is able to get over that bar, then the child will be in their care. If they are just failing to clear the bar but not by much, then there might be a debate about whether some moderate support would allow them to reach that point in the child's timescales. If they were just over the bar but there were worries that they might in time fall below it, there might be a debate about what moderate support would allow them to continue to be above the bar.

What there has not historically been is a situation where a parent was considerably short of the bar but might be boosted over it by a high level of support. That may be a debate which surfaces now, as a result of these comments by the Court of Appeal at paragraphs 28 and 29:

"28….before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support ....

…. It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work, as indeed the framers of the Children Act 1989 always hoped that it would be made to work. The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully.

29. It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking."

There may well be a collision course at some point between those sentiments and the principles laid down by the House of Lords (now the Supreme Court) in Kent County Council v G [2005] 3  FCR 261  and R v Gloucestershire County Council ex parte Barry [1997] 2 All ER 1,  particularly if what is sought by way of support is considered by the local authority to be unreasonable or disproportionate or involving therapy.

4. Where does this leave the 26 week target?
In the relatively short period since Re B-S was delivered, there have been some who have taken a passage within the judgment to suggest that adoption cases post-Re B-S are exceptional and fall outside of the 26 week timetable.

What the Court of Appeal says in relation to this is that where such proper analysis is not available, then the case must be delayed until it is made available, BUT that it will be a requirement in robust judicial case management to ensure that it is routinely made available in good time for the final hearing.

There will obviously be a difficult transitional period, such as is occurring now, where adoption cases are either underway or final evidence was prepared in advance of Re B-S, where the final evidence needs to be recalibrated in line with this more robust and vigorous framework, but the Court of Appeal were not abandoning the 26 week timetable by any means:

"48. Our emphasis on the need for proper analysis, argument, assessment and reasoning accords entirely with a central part of the reforms. In his 'View from the President's Chambers' the President has repeatedly stressed the need for local authority evidence to be more focused than hitherto on assessment and analysis rather than on history and narrative, and likewise for expert reports to be more focused on analysis and opinion: see 'The process of reform: the revised PLO and the local authority', [2013] Fam Law 680, and 'The process of reform: expert evidence', [2103] Fam Law 816. What the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in play in the particular case, which analyses all the possible options, and which provides clear conclusions and recommendations adequately reasoned through and based on the evidence.

49. We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. 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."

Although the case relates specifically to adoption, the general principles (bearing in mind the need for the court to look where possible at the 'least interventionist' form of order) would appear to apply in any case where the option of placing the child other than with birth parents is being mooted.