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Keep Calm and Read B-S

Cyrus Larizadeh of 4 Paper Buildings and Senate House Chambers recently spoke at the NAGALRO Conference on Re B-S, its aftermath and some of the misconceptions arising from it.

Cyrus Larizadeh, barrister, 4 Paper Buildings

Cyrus Larizadeh, barrister, 4 Paper Buildings and Senate House Chambers

Rarely if ever has a judgment been so abused, misused and misunderstood as that of Re B-S (Children) [2013] EWCA Civ 1146. What was essentially a well meaning and necessary reminder to us all of the correct approach and practice in care and adoption cases has caused a frenzy – some may say there has been Much Ado About Nothing.

Back to basics
In Re B (A Child) [2013] UKSC 33 the Supreme Court, having reminded itself of the European jurisprudence, reiterated that the test for severing a relationship between a parent and child is very strict so that, in the words of Baroness Hale of Richmond at paragraph 198, it should occur:

"only in exceptional circumstances and when motivated by overriding requirements pertaining to the child's welfare, in short, when nothing else will do. In many cases and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions."

As Lord Neuberger observed at paragraph 77, making a child subject to a care order with a plan for adoption should be "a last resort" because "the interests of the child would self evidently require her relationship with her parents to be maintained unless no other course was possible in her interests".

This interpretation was reiterated by the President, Sir James Munby, giving the judgment in the Court of Appeal in Re B-S [2013] EWCA Civ 1146.The statutory language in the 2002 Act imposes a stringent test. What must be shown is that the child's welfare 'requires' parental consent to adoption to be dispensed with.

At paragraph 34 and following in his judgment, the President identifies two essential requirements where a court is being asked to approve a care plan for adoption and/or make a non-consensual placement order.

"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."

At paragraph 36, the President affirmed and endorsed the observation of Black LJ in Plymouth CC v G (Children) [2010] EWHC Civ 1271 at paragraph 47:

"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 second key requirement identified by the President as essential is an adequately-reasoned judgment. In this context, he cited and approved the observations of McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 paragraphs 49-50:

"In most child care cases, the 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 a 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…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 Re HA (A Child) [2013] EWHC 3634 at para 28 Baker J sets out his understanding of Re B-S onwards:

"It has been suggested in some quarters that this line of recent authorities represents a radical change. I do not read it in this way. The Court of Appeal is simply emphasising the need for a rigorous analysis and comparison of the realistic options for the child's future, having regard to the advantages and disadvantages of each option. This is not new law. It is required by the checklists set out in sections 1(3) of the 1989 Act and section 1(4) of the 2002 Act, each of which stipulates that the court must consider the range of orders available. In the recent cases, the appellate courts have detected some superficiality in the analysis of the options, in particular the analysis of the advantages and disadvantages of permanent placement outside the birth family.  They have therefore reminded courts at first instance of the need to identify the realistic options and submit them to a thorough analysis, weighing up the advantages and disadvantages of each option. In some cases, the parties and the court may find it useful to draw up a balance sheet setting out the pros and cons of the realistic options, but this does not require a court in every case to set out in tabular format the arguments for and against every conceivable option. Such a course would tend to obscure, rather than enlighten, the reasoning process." (emphasis added)

Key points
The key points which can be taken from the Re B-S line of authorities in relation to the contents and structure of the Social Worker and Guardian's evidence is as follows:

i. The use of a balance sheet in respect of the available placement options is strongly advisable but not mandatory.

ii. The contents of any such balance sheet must, however, be sufficiently detailed in their analysis of the alternative options available and must carefully explain why each option is or is not suitable for the subject child – it needs to set out concisely and with clarity the strengths and weaknesses of each option.

iii. There must be proper evidence not just from the local authority but from guardians that addresses all the options which are realistically possible culminating in a fully reasoned recommendation.

iv. The local authority is strongly advised to set out in detail any support services which could be provided to the family and, if appropriate, why the provision of such services would not be sufficient to sustain any placement within the family.

v. The local authority should be able demonstrate that it has had regard to concurrent care planning in each case.

vi. The evidence should acknowledge its appreciation of the seriousness and the draconian nature of not just an adoptive care plan, but also of the making of a care order and why this is necessary in the circumstances.

vii. In the event that a care plan of adoption is pursued, then the local authority should make it clear in its presentation of the evidence that no other placement option available would be sustainable in the long-term and that it is necessary to dispense with parental consent to adoption.

viii. There should be an adequately reasoned judgment by the judge carrying out a proper balancing exercise to determine the appropriate order in the circumstance of the individual case. This 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...with the result that at the end of the line, the only option left standing is the most draconian." It should instead be a "global holistic evaluation of each of the options".

ix. The need for proper process does not per se conflict with the requirement for care cases to be completed within 26 weeks.

x. If the court does not have the necessary evidence and is not able to make a decision on the options for placement, because the required evidence and analysis is absent, then the proceedings should be adjourned, even if this takes the case over 26 weeks.

Principles from the Port Talbot case
In W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227 at  para 76 Ryder LJ  expands on McFarlane LJ's analysis in Re G of the approach to be applied:

"The purpose of setting out these basic but important propositions is to provide a very practical example as well as the legal basis for the use of the court's power to direct the evidence that it needs to determine the issues it has identified and answer the questions that are before the court.  The welfare evaluation and the question what, if any, orders are to be made engages Article 8 of the Convention and the proportionality of that intervention must be justified. One cannot have a clearer description of the imperative than that contained in the Supreme Court's judgments in In the Matter of B (A Child) [2013] UKSC 33.   A court cannot apply the yardstick of proportionality in its consideration of what is necessary without having evidence about the options to which it can apply a welfare evaluation.  As McFarlane LJ said in Re G at [54]:

'What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.'"

At para 78 in Re W Ryder LJ makes this additional observation:

"Setting out the positives and negatives or if you prefer, the benefits and detriments of each placement option by reference to the welfare checklist factors is an illuminating and essential intellectual and forensic exercise that will highlight the evidential conclusions and their implications and how they are to be weighed in the evaluative balance that is the value judgment of the court.  It is to be noted that this exercise is different in substance and form from a mechanical recitation of the welfare checklist with stereotypical commentary that is neither case specific nor helpful."

Re W reminds us that the court's powers extend to making an order other than that asked for by a local authority.  The process of deciding what order is necessary involves a value judgment about the proportionality of the State's intervention to meet the risk against which the court decides there is a need for protection.  In that regard, one starts with the court's findings of fact and moves on to the value judgments that are the welfare evaluation.  The evaluation is that of the court, not of the local authority, the guardian or indeed any other party.  It is the function of the court to come to that value judgment.  It is simply not open to a local authority within proceedings to decline to accept the court's evaluation of risk, no matter how much it may disagree with the same.  Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.

As Ryder LJ stressed in Re W para 81:

"It is likewise not open to a local authority within proceedings to decline to identify the practicable services that it is able to provide to make each of the range of placement options and orders work in order to meet the risk identified by the court.  That is the purpose of a section 31A care plan.  If a local authority were able to decline to join with the court in the partnership endeavour of identifying the best solution to the problem, then there would be no purpose in having a judicial decision on the question raised by the application.  It might as well be an administrative act. 

Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court.  It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought."

In Ryder LJ's view at para 82:

"To do otherwise is to risk a disproportionate intervention into the lives of the child and the parents simply because of the financial or other priorities of different local authorities.  To put it into stark terms, it cannot be right that in one local authority a child would be placed with a parent or other kinship carer with significant support to meet the risk whereas in another local authority the same child would be placed with a view to adoption in the implementation of  a plan to meet the same risk.   The proportionality of placement and order are for the court.  The services that are available are for the authority. 

In this regard, I cannot improve on the words of the court most recently in Re B-S (Children) [2013] EWCA Civ  at [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.'"

CM v Blackburn – the impact of Re B-S on contingency plans
In CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479 the sole issue on appeal was described by Ryder LJ as whether a court can make a placement order when the local authority's care plan describes what has come to be known as a 'dual track' or 'twin track' approach.   The appellant's submission was that as a matter of law a dual search does not reflect a circumstance where 'nothing else will do' because long term fostering will do, as the fallback plan. 

As against that, there were strong welfare arguments for allowing concurrent planning for children and such a course was well established in the authorities.  The Court of Appeal concluded that:

i. The statutory tests are not re-drawn by Re B and by Re B-S. 'Nothing else will do' is the conclusion of a proportionality evaluation after a process of deductive reasoning, not a new presumption and not a standard of proof.

ii. It is not necessary to have a contingency in a care plan although it is desirable. A timetable within which a local authority has to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.

iii. Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.

iv. There is no objection in principle to dual planning in an appropriate case. This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy. It was not a decision that one of two options would do.

Ryder LJ makes it clear in CM at paras 32 and 33:

"I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts. The test remains untouched but the court's approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision. That can be seen in graphic form in the comments of the President in Re B-S at [30]:

'we have real concerns about the recurrent inadequacy of the analysis of 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.'

Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption." (emphasis added)

Re R - closing the chapter on B-S?
The key recent case which seeks to deal with the misconceptions and myths and which tries to draw the post-B-S threads together is Re R (A Child) [2014] EWCA Civ 1625.

The case concerned a two-year old girl (ES), who was removed from her mother's (M) care because of concerns around the domestic violence between her parents and M's abusive binge drinking. Parenting assessments were carried out on both parents, which were negative about their ability to care for ES. M lied to professionals about the nature of her relationship with the father (F) and about her drinking. No other family members had been put forward as potential carers. The local authority's care plan was for adoption, which the children's guardian supported. F accepted that he was unable to care. M wanted ES to be reunified with her.

The lower court made the care order and placement order. The grounds of appeal were that the judgment took a linear approach, there was too much reliance on M's dishonesty, which made the lower court's decision wrong and the decision as a whole breached the mother and child's right under Article 8 of the European Convention of Human Rights to a private and family life.
The appeal was dismissed. The following guidance was given:

i. Re B-S did not change the law and was primarily directed at practice.

ii. A judgment necessarily takes a linear structure in order to make sense.

iii. The appeal court focuses on the substance of the judicial analysis, not the structure or form of the judgment.

iv. Where adoption is in the child's best interests local authorities must not shy way from seeking nor courts from making care orders with a plan of adoption, placement orders and adoption orders.

v. Adoption orders are to be made in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests.

vi. The court's paramount consideration is the child's welfare throughout his life in accordance with section 1(2) of the Adoption and Children Act 2002.

vii. A table of pros and cons for every option is unhelpful. Pros and cons are required for the realistic options.

viii. Social work evidence needs to focus on realistic, sensible and practical options only.

ix. Assessment of every wider family member as a potential carer is not required to ensure every option is explored.

x. No second assessment can be ordered, unless it is necessary to resolve the proceedings justly. Assessments should not be directed in the hope that "something may turn up".

xi. It is possible to rule out a parent as a realistic option before the final hearing, but a judge needs to be cautious about doing this.

xii. Cases with two realistic options are binary in nature and the court will not be regarded as having taken a linear approach. One must be compared with the other in a comparative welfare evaluation.

xiii. Cases where the only realistic option is adoption will require the court to consider whether this option is in the child's best interests and whether the parent's consent can be dispensed with.

The key passages in Re R are set out here:

"[41] There appears to be an impression in some quarters that an adoption application now has to surmount 'a much higher hurdle', or even that 'adoption is over', that 'adoption is a thing of the past.' There is a feeling that 'adoption is a last resort' and 'nothing else will do' have become slogans too often taken to extremes, so that there is now "a shying away from permanency if at all possible" and a 'bending over backwards' to keep the child in the family if at all possible. There is concern that the fact that ours is one of the few countries in Europe which permits adoption notwithstanding parental objection is adding to the uncertainty as to whether adoption can still be put forward as the right and best outcome for a child.

[42] There is concern that Re B-S is being used as an opportunity to criticise local authorities and social workers inappropriately – there is a feeling that "arguments have become somewhat pedantic over 'B-S compliance'" – and as an argument in favour of ordering additional and unnecessary evidence and assessments. It is suggested that the number of assessments directed in accordance with section 38(6) of the Children Act 1989 is on the increase. It is said that when social worker assessments of possible family carers are negative, further assessments are increasingly being directed: "To discount a kinship carer, it seems that two negative assessments are required." There is a sense that the threshold for consideration of family and friends as possible carers has been downgraded and is now "worryingly low". Mention is made of a case where the child's solicitor complained that the Re B-S analysis, although set out in the evidence, was not presented in a tabular format. 

[43] We are in no position to evaluate either the prevalence or the validity of such concerns in terms of actual practice 'on the ground', but they plainly need to be addressed, for they are all founded on myths and misconceptions which need to be run to ground and laid to rest. 

[44] I wish to emphasize, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child's best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child's welfare should not be compromised by keeping them within their family at all costs.

[55] Nothing that was said in Re B-S was intended to erode or otherwise place a gloss upon the statutory requirements of section 1 of the 1989 Act and section 1 of the 2002 Act. On the contrary, the exhortation for courts to undertake a balancing exercise which pits the pros and cons of each realistic option against the others was aimed precisely at discharging the court's statutory duty under section 1. In particular, before making a decision relating to a child's welfare, a court is required to have regard to, amongst other matters, the factors set out in the relevant 'welfare checklist'. The evaluation of options described in Re B-S must be undertaken with those factors in full focus.

[56] Re B-S did not change the law. Re B-S was primarily directed to practice. It expressed (para 30) our: "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." It continued "This is nothing new. But it is time to call a halt." It demanded (para 40) that "sloppy practice must stop". It spelt out (see para 33) "what good practice, the 2002 Act and the Convention all demand."

The view from the President's Chambers has always been clear at least in relation to Re B-S but whether our view from the ground looking up is as clear remains to be seen.  What IS clear is that the message about the manner in which evidence is presented in support of such key life changing applications has finally been received right across the country thanks to Re B-S and to the procession of subsequent cases culminating in Re R, and that changes have been indeed been made and will continue to be made to our presentation and approach in accordance with the urging of the President and the Court of Appeal.