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Placement and Adoption: if a thing is worth doing, it is worth doing well

Mavis Amonoo-Acquah, Pupil Barrister, 1 Garden Court Family Law Chambers, considers recent judicial guidance, and its application, in respect of non-consensual adoption.

Mavis Amonoo-Acquah, pupil barrister, 1 Garden Court Family Law Chambers






Mavis Amonoo-Acquah, pupil barrister, 1 Garden Court Family Law Chambers

The principle of non-consensual adoption is a topic which invites debate amongst lawyers, social workers and laypeople alike. The idea that the state can dispense with the consent of a child's birth parents and order a local authority to place a child for adoption, is not one shared by many other European jurisdictions, as pointed out by Baroness Hale in Down Lisburn Health and Social Services Trust and another v H and another [2006] UKHL 36 at [34]. The premise is so unusual that in Re E (A Child) [2014] EWHC 6 (Fam), President Munby at [15] admitted that:

"the judicial and other State authorities in some countries that are members of the European Union… may take a very different view and may indeed look askance at our whole approach to such cases".

The courts have consistently recognised and reiterated the principle that a child has the right to a family life and that the child's best interests include being brought up within their birth family.1 This premise is also prevalent in European and international instruments such the European Convention on Human Rights (Article 8) and the UN Convention on the Rights of the Child (Preamble and Article 9). In addition, numerous appellate decisions have made it clear that removing a child from their birth family, while an option available to the court, is not desirable unless the interests of the child render a placement or adoption order "necessary".2 In Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 FLR 1035, the Court of Appeal emphasised the strict nature of the test in such circumstances at [20]:

"Section 52(1)(b) of the [Adoption and Children Act] provides… that the consent of a parent with capacity can be dispensed with only if the welfare of the child 'requires' this. "Require" here has the Strasbourg meaning of necessary, 'the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable'… This is a stringent and demanding test." (emphasis added)

The seriousness of placing a child for adoption has remained at the forefront of judges' minds and the oft used quotes from Re B and Re B-S (that adoption is a 'last resort' and should only be implemented where 'nothing else will do') have been reiterated by courts at all levels. In response, the courts have consistently sought to emphasise the importance of ensuring that all alternative avenues have been exhausted, before the court can decide that making a placement or adoption order is the appropriate way to ensure that the child's best interests are met.

Many commentators have opined that the decisions of Re B and Re B-S have led to a decline in the number of children being placed for adoption, and statistics gathered by the National Adoption Leadership Board chart this downward trend. Whether this decline is due to local authorities misinterpreting the judgments and becoming more hesitant to propose adoption, or judges demonstrating a reluctance  to make placement or adoption orders in light of those decisions, is unclear. However, those judgments merely re-emphasise that where a child's welfare demands it, a placement or adoption order can be made, but the judge's decision to make these orders must always be transparent and fully justified with reasons. In addition, birth parents must be given every reasonable opportunity to maintain their family unit when faced with the threat of adoption.

Appellate decisions have clarified the process which needs to be followed and the relevant factors that ought to be considered before both the court and the birth family can be said to be satisfied that all possible options have in fact been exhausted. Unsurprisingly, given the nature of non-consensual adoption, it is imperative that the correct judicial considerations and relevant legislation are stringently and correctly applied. As this article examines, it is evident from recent case law that these procedures and safeguards for the birth parents have not always been closely followed, to the potential detriment of children and birth families alike.

The birth family's second chances
The starting point for all children is that they should remain with their birth family. While the importance of this principle must be considered throughout care proceedings, in practical terms, it most often arises at two points.
The first is where (or in some cases just before) care proceedings have been issued. At this stage, the local authority is obliged to consider whether members of the extended birth family can provide adequate care for the child. The need to consider this factor continues throughout the proceedings, as it is possible that a family member may put themselves forward once proceedings are underway. 

The second occasion is where an application for an adoption order has been issued. Following this application, the birth parents have the opportunity to seek leave to oppose the adoption order under section 47 of the Adoption and Children Act 2002 (ACA). Section 47(7) ACA makes it clear that leave to oppose cannot be granted to the parents "unless [the court is] satisfied that there has been a change in circumstances since …the placement order was made".

Section 47 goes some way towards giving parents a second chance to prevent their child from being adopted. Whereas the door would appear to be firmly closed to the parents upon the making of a placement order, this provision re-opens the door to further consideration of the parents, and the question of whether they have a realistic and not merely a fanciful prospect of being able to meet the needs of their child.  In addition, the spirit behind the 'change of circumstances' criteria demonstrates further support for birth parents as explained in Re P [2007] EWCA Civ 616, [2007] 2 FLR 1069:

"We do, however, take the view that the test should not be set too high, because, as this case demonstrates, parents in the position of S's 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. …"3

While it is unfair on parents to set the test for change of circumstances too high, it would also be unfair if the court did not apply the test correctly, or at all, as occurred in Re W (Children) [2015] EWCA Civ 403. In Re W, the trial judge failed to consider the paternal aunt as a potential carer for the children. As the aunt had not previously been considered as a potential carer, this new development equated to a change of circumstances. By ignoring the introduction of the paternal aunt, the trial judge misapplied the directions given in statute, in particular section 1(4)(f)(ii) ACA,  which says that as part of the welfare checklist, the court should consider:

"(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including –

(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,"

And in addition, Re P (2007) makes it clear that:

"… a change in circumstances can embrace a wide range of different factual situations. Section 47(7) of the 2002 Act does not relate the change to the circumstances of the parents. The only limiting factor is that it must be a change in circumstances 'since the placement order was made".4

When considering whether a change of circumstance has occurred, the Act and case law are clear – all relevant circumstances must be considered, not just a change in the parents' personal circumstances. This therefore draws the parameters of the judicial considerations widely, thereby giving parents a greater opportunity to try to keep their child in the birth family.

As the consequences of adoption are far-reaching, it could be considered entirely right that the birth family be given every opportunity to try to demonstrate their ability to care for the child and thus prevent the potential adoption. In light of this, it is important that judges do not deprive the birth parents of this opportunity by allowing anything less than a full and correct consideration of all relevant facts and principles.

While provision has been made to give parents multiple opportunities to prevent an adoption, there are also expectations placed on judges to conduct the case correctly – both in terms of giving the parents their second chance, and in the wider judicial context, to which we now turn.

The evaluative process
Authorities have made it clear that when a court is faced with the welfare considerations of a child, it must consider all of the realistic care options available. Furthermore, in its considerations, the court must clearly weigh up the positive and negative aspects of each option by undertaking a global evaluative approach. In Re G [2013] EWCA Civ 965, [2014] 1 FLR 670, McFarlane LJ said at [49-50] and [54]: 

"'In most child care cases a choice will fall to be made between two or more options… [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.'

"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." (emphasis added)

These remarks by McFarlane LJ were cited by the President in Re B-S at [43-44] and by Black LJ in Re L [2014] 2 FLR 913 at [46]. The emphasis placed on carrying out an evaluative exercise in regard to care options supports the position that a child should be placed for adoption only as a last resort. The implementation of the balancing exercise is the court's way of demonstrating that all factors have been duly considered, evaluated and applied. In spite of this requirement being made clear in the aforementioned cases, the same problem arose again in Re J (A Child) [2015] EWCA Civ 222, where it was argued that the trial judge had failed to carry out this balancing exercise (amongst other things). An appeal against a care and placement order also succeeded in Re P (Care Proceedings: Balancing Exercise) [2013] EWCA Civ 963, [2014] 1 FLR 824, because:

"the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis."5 

In addition, not only must the balancing exercise be carried out, but it must be clearly explained and reasoned in the judgment. This issue arose in Re N-D [2014] EWCA Civ 1226. In that case, the Social Worker and the Guardian both recommended placing the children for adoption. The trial judge accepted these recommendations, but failed to explain why she had favoured their evidence over that given by others. In response to this failure, the Court of Appeal said at [13] that "the judge was entitled to exercise her judgment in that way, provided she reasoned the same". In essence, the answer the judge had reached may have been correct, but the decision could not be upheld because the manner in which the judge had reached, or explained that decision, was flawed.

Whose judgment is it anyway?
Looking at the outcome in Re N-D, one might object to the Court of Appeal's decision and argue that, as long as the judge reached the right conclusion, why ought it to matter how they reached that conclusion? The answer to that is made clear in Re N-D itself. At [6] Ryder LJ made clear that "parties are entitled to know the basis upon which the court has made its decisions". Supporting this idea is the dictum in Re J at [50] where McFarlane LJ said that while it is not mandatory for a senior and experienced judge to set out the requisite tests and applicable principles in detail, it assists the reader to see that all things have been considered by the judge.

The important principle that judgments should be fully reasoned is well established and the Court of Appeal has seen fit to remit a decision to the trial judge for further explanation if the judgment is considered to be inadequate6. It is arguably particularly important that fully reasoned decisions are provided in cases where a parent faces losing their child to adoption.  The risk is that, if the judge does not demonstrate that all the procedures and principles have been properly followed in their judgment, parents cannot be sure that all relevant factors have been properly considered in coming to a conclusion that the child's welfare really does call for a placement or adoption order to be made. If judges are to take that difficult step and sever the ties between a child and their birth family, then their decision must be fully explained and justified.

McFarlane LJ in Re G went further than this and said that, in essence, it is not simply enough that judges know the principles which should be applied to placement and leave to oppose adoption applications, or reference them in passing, but they ought also to demonstrate that the principles have been completely engaged with. He said at [53]: 

"… 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'. …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..." (emphasis added)

Furthermore, in Re S [2014] EWCA Civ 135, [2015] 1 FLR 130, at [28], Macur LJ emphasised the importance of a judge not simply acknowledging the existence of the welfare checklist, but engaging with it by conducting a proper consideration of the factors contained therein:

"[the trial judge] refers in general terms to 'the welfare checklist in s 1(4)' and specifically to 'the authority of Re P (Placement Orders: Parental Consent)… quoting Wall LJ (as he then was) in expressing the imperative to ensure 'the child's welfare requires adoption as opposed to something short of adoption'… However, I regret that this is formulaic phraseology in the absence of a reasoned consideration of the welfare checklist, whether explicitly referenced or capable of recognition throughout the evaluations stated within the body of the judgment. …[counsel] was unable to identify any passages which engaged the relevant criteria to any or any sufficient degree. Consequently the judgment read as a whole does not and cannot engage the essence of Re B-S."

The judiciary should be careful to follow the clear steps set out in the case law when considering the care options for a child – no stone can be left unturned. As demonstrated, the Court of Appeal has been, and is prepared to overturn decisions where a trial judge has not followed the required steps, even if the final decision may have been correct. This potentially causes unnecessary and avoidable delay for the child, which is clearly not in their best interests. On the one hand, drafting extremely comprehensive judgments and welfare evaluations may appear to be an onerous task for judges, but it is a task which is proportionate to the gravity of the decision at hand and needs to be done. 

The need for, or justification of, non-consensual adoption will most likely continue to encourage healthy debate and be subject to differing opinions and varying levels of criticism. It is therefore very important that birth parents are given every opportunity to redeem themselves, or demonstrate that they are capable of caring for their child within the extended birth family and, in turn, prevent an adoption taking place. In addition, judges must adhere to statutes, judicial guidance and clearly defined procedures before making placement or adoption orders. With the existence  and correct implementation of these judicial mechanisms, even if our European counterparts continue to disagree with the principle of non-consensual adoption, it will at the very least be clear that a reasoned, consistent and transparent approach is applied in English Law – for if a thing is worth doing, it is worth doing well.


[1] See Re B [2013] UKSC 33 at [104]
[2] Ibid. at [34]
[3] [32]
[4] [31]
[5] Black LJ at [107]
[6] See Re A and L [2012] 1 FLR 1243