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Children: Public Law Update (January 2014)

John Tughan, barrister of 4 Paper Buildings, analyses recent judgments in public law children cases and, in particular, the Re B-S line of authorities.

John Tughan, barrister, 4 Paper Buildings

John Tughan, barrister, 4 Paper Buildings

This article will deal with:

The Re B-S line of authorities
Practitioners will know just how busy the Court of Appeal has been following the decision in Re B-S (Children) [2013] EWCA Civ 1146.  The need for the full evidence to be before the court in the balance sheet analysis together with properly reasoned judgments are two of the  fundamental principles that flow from Re B-S and the subsequent cases.  Those principles have been expanded upon and explained in decisions that have surrounded B-S.

In Re G (A Child) [2013] EWCA Civ 965 McFarlane LJ said this:

"In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option....The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."

In C (A Child) [2013] EWCA Civ 1257 criticised the judgment at first instance as being linear as opposed to holistic:

"The CA 1989 welfare checklist must, by reason of CA 1989, s 1(4)(b), be used when the court is considering making a care order under s 31. A linear judgment, which unnecessarily compartmentalises the decision making into discrete and separate stages ('care order' and only then 'adoption'), with the 1989 Act provisions alone being used to approve a plan for adoption, in some cases may prevent the evaluation of what is ultimately the one issue in the case, the choice between family placement or adoption, as a whole and for that evaluation to be undertaken with the tailor-made, adoption focused, welfare checklist in ACA 2002, s 1 at the forefront of the judicial mind."

Fundamental to the whole issue of this jurisprudence from the Court of Appeal is the decision of the Supreme Court in Re B (A Child) [2013] UKSC 33.  The Court of Appeal in Re B-S described Re B in this way:

"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."

In Re B Lord Neuberger put forward three propositions:

  1. Although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible.
  2. As required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a is "necessary to explore and attempt alternative solutions. 
  3. The court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer.

In the recent decision in the case of Re E (A Child) [2014] EWHC 6 (Fam) the President (sitting at first instance) was considering the issues that arose within care proceedings relating to a 12 year old Slovakian boy.  That decision is discussed more fully below but the policy considerations, as expressed by the President, are relevant in understanding the B-S line of decisions.  The President said this:

"It would be idle to ignore the fact that these concerns [relating to children from other jurisdictions being the subject of care proceedings within the UK] are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.....we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases....

...The English family justice system is now part of a much wider system of international family justice exemplified by such instruments as the various Hague Conventions and, in the purely European context, by BIIR.  Looking no further afield, we are part of the European family of nations.  We share common values. In particular in this context we share the values enshrined in BIIR."

It is now up to the court of first instance to apply this jurisprudence to the facts of the cases that appear before them.  The difference between a holistic and a linear judgment (or reasons) could be approached in the following way.  It is now impermissible to start with the proposition that the court must "deal" with the position of the parents first.  This is because, in the imperfect world in which we live and in the circumstances of many public law cases the court is looking towards the 'least worst' outcome for the child.  Each outcome can be individually criticised and each may be capable of being eliminated from further consideration.  The effect of this would be to arrive at the wrong decision for the child.  As McFarlane LJ put it, in Re G:

"One only has to take an extreme example of the effect of linear consideration to see the potential danger for this approach.  The linear model proceeds by evaluating and then eliminating each individual option in turn before selecting the option at the end of the line, without evaluation of its own internal merits or de-merits, simply on the basis that it is the only remaining outcome.  Much therefore depends on which end of the line the selector starts the process.  Conventionally those judges who deploy a linear approach start, for understandable reasons, with the option of rehabilitation to a parent and end with the option of a care or adoption order.  If, however, for the purposes of observing the dangers in the process, one were to start at the other end of the line and look at long-term foster care or adoption first, and were then to rule that out on the basis that there are risks and negatives attaching to it, the linear approach would soon arrive at 'rehabilitation to a parent' as the only remaining option and select that without any consideration of whether that is in fact the best outcome for the child. All would agree that such an approach would be untenable.  I hope, however, that this example demonstrates how inappropriate the linear model is for a judge who is tasked with undertaking a multi-faceted evaluation of a child's welfare at the end of which one of a range of options has to be chosen."

A recent example of a first instance approach to these principles is to be found in Re LRP (A Child) (Care Proceedings - Placement Order) [2013] EWHC 3974 (Fam) in which Mrs Justice Pauffley was considering the issue of making a placement order in the post B-S landscape.  The approach of the court in that case was expressed in this way:

"I must analyse and consider all of the realistically available competing options.  And I must weigh the associated positive and the negative factors. I have to be satisfied there is a sufficiency of evidence in relation to each proposal so as to undertake a global, holistic and multi-faceted evaluation of LRP's welfare."

In approaching the options for the purposes of deciding upon the outcome of the case, Pauffley J emphasised that the court's task was to consider the realistic options:

"The realistic, as opposed to the fanciful, options are (i) a return to her parents or (ii) a placement for adoption. So whilst I am sympathetic ..., as I would be to any practitioner who is endeavouring to fulfil the requirements of the law in the way assessments are conducted and reports written, it is worth reiterating that the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched."

Re LRP is a judgment that bears a full reading as it ranges over a number of important issues including the approach to the necessary "holistic" decision and the relative advantages of adoption as opposed to long-term fostering.  There is a debate amongst practitioners and the judiciary as to the effect of the Re B-S principle.  Is it re-stating what the courts have always done or does it involve a shift in the approach of the courts?  For my part, I believe it is an important change rather than a re-statement of principle.

Conditions attached to a placement order
In Re A (Children) [2013] EWCA 1611 the first instance judge had made care and placement orders in relation to the children, having concluded that adoption was in their interests if the right adopters could be found but that "if the right adopters cannot be found, adoption is not in the interests of these children and should not take place."  The order of the court included a clause that as "a pre-requisite to placement of the children for adoption, prospective adopters to be suitable must be...." and then listed a number of characteristics of the adopters that were necessary.  These characteristics included "energetic".  The local authority appealed.  McFarlane LJ dealt with the authorities relating to the border between court and local authority implementation of a care plan.  The authorities discussed included Re: S; Re: W (Care Order: Care Plan) [2002] UKHL 10; [2002] 2 AC 291, Re A (A Child) (Adoption) [2007] EWCA Civ 1383 and In re T (A Minor)(Care Order: Conditions) [1994] 2 FLR 423.

The local authority's appeal was granted as a result of the absence of a jurisdictional basis for the court imposing "conditions" on the placement order.  However, the cross-appeal of the mother was also granted.  Since the court had concluded that only a particular (and very specific) type of adoptive placement was suitable, when that conclusion was coupled with the absence of jurisdiction to order such a placement, the court should not have made the placement order.  McFarlane LJ commented:

"The absence of placement for adoption orders will no doubt render more difficult the task of finding prospective adopters for these two children, but the local authority remain able, under the care order, to continue to search for adopters......If prospective adopters are identified, then it will be open to the local authority to make a fresh application to the court for an order authorising placement for adoption under ACA 2002, s 21."

Practitioners should be aware of the guidance issued by the President in relation to transparency in the family courts.  The guidance can be found here.  

The guidance is intended to "bring about an immediate and significant change in practice in relation to the publication of judgments in family courts". There is corresponding guidance in respect of the Court of Protection.

It applies to most care cases, and potentially some private cases.  It sets out the starting point for the court in the correct class of case as allowing publication of the judgment.

The guidance was issued a few days after the President's decision in the case of Re E (A Child) [2014] EWHC 6 (Fam) (referred to above).  That is a decision which covers a number of important areas, namely Brussels II Revised, the Vienna Convention and reporting restriction orders.  It is the last area that is relevant to the issue of publicity.  The President reminds us of his recent decisions in the cases of Re J (A Child) [2013] EWHC 2694 (Fam) and in Re P (A Child) [2013] EWHC 4048 (Fam).  The President emphasised the need for informed public debate:

"In short, the balance needs to be struck in such a way as to facilitate public debate and enable the mother, if she wishes, to tell her story, whilst at the same time protecting E's anonymity.  This is achieved, in what in my judgment is the appropriate way, by the provisos at the end of paragraphs 11 and 15 of the order."

The full provisos are worth reading but, in effect, they allowed the publication of the mother's first name.  In that way the court achieved the balance between debate and anonymity for the child.

Special guardianship order or adoption?
In Re DF and GF [2013] EWHC 2607 Mrs Justice Pauffley was considering the differences between special guardianship and adoption.  In the judgment of the court attention was drawn to the following procedural issues:

  1. The court has the power to make a special guardianship of its own motion: see  s.14A(6)(b) of the Children Act 1989.
  2. The court has the jurisdiction to impose a SGO on parties who seek a different form of order: Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54.
  3. The court cannot make a special guardianship order of its own motion unless it has received the report from the local authority: s14A(11) Children Act 1989.

As to the decision making discretion between SGO and adoption, the court drew the following principles from the authorities:

1. There is no presumption that a special guardianship order is preferable to an adoption order in any particular category of case. Each case must be decided on its particular facts and will require careful application of judicial discretion.

2. The White Paper, Adoption: A New Approach, Cm 5017, contained a helpful summary of the main features of the special guardianship regime, and helpful illustrations of the circumstances in which special guardianship might be appropriate, including with family members; see Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54:

"the main features of the special guardianship regime, are to:

– give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing;
– provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person;
– preserve the legal link between the child or young person and their birth family;
– allow proper access to a full range of support services including, where appropriate, financial support.

It also gives some helpful illustrations of some circumstances in which guardianship may be appropriate:

(i)  older children who do not wish to be legally separated from their birth families;
(ii)  children being cared for on a permanent basis by members of their wider birth family;
(iii)  children in some minority ethnic communities, who have religious and cultural difficulties with adoption as it is set out in law;
(iv)  unaccompanied asylum-seeking children who need secure, permanent homes, but have strong attachments to their families abroad.

3. The weight to be given to the issue known as the "skewing or distorting" of familial relationships by virtue of an adoption order is a factor which will inevitably depend on the facts of the particular case, and it will be only one factor in the overall welfare equation (Re S (No1) (supra) paragraph 51).

4. An essential component of the advantages produced by an adoption order for both adopters and children is that they are in most cases then free from the threat of future litigation. If the same protection is not available in respect of special guardianship orders, this may be a substantial derogation from the security provided.

5.Under a special guardianship order, a parent requires leave to reopen the issue of the order itself or of the child's residence but similar considerations do not apply to other forms of order under s.8.  The court may invoke s.91(14) to place a filter on further applications and has the jurisdiction to do so indefinitely; but the test for overcoming the leave restriction has historically been seen as relatively low.

6. The statutory scheme for making special guardianship orders was designed generally to allow unfettered access to the court thereafter by parents in relation to all s.8 orders apart from residence.  In this respect, it must be accepted that special guardianship does not always provide for the same permanency of protection as adoption.  This is a factor which, in a finely balanced case, could well tip the scales in favour of adoption.

7. Whilst special guardianship orders may well have been designed to encompass, and in many cases are suitable for, long term familial placements, it is not helpful to approach any given case on the basis that one option is the 'preferred option' unless there are cogent reasons against it (Re M-J (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 56, [2007] 1FLR 691, Wall LJ at paragraph 17).

8. Whilst it may be material for the court to consider which order was less 'interventionist', in the context of whether an order was a 'proportionate' response, no such consideration could be allowed to derogate from the welfare principle (Re M-J (supra) at paragraph 19).