Summary
This briefing will examine the two appeal cases which are considered to have far-reaching implications on cases on permanence option available for a child who is subject to care or adoption proceedings. The impact of these cases has arguably required a complete rethink of the way in which evidence is presented and analysed in cases.
The two case are Re B (A Child) [2013] UKSC 33 and Re B-S (Children) [2013] EWCA Civ 1146, both have challenged social workers, and children’s guardians to examine their standards of analysis and how evidence should now be presented in the family courts. The cases have also set in trend the current judicial approach to evaluation of cases where the care plan for the child is adoption with a clear focus on proportionality.
These cases further present a challenging reinterpretation of the interplay between the Children Act 1989 and the Human Rights Act 1998.
Practice areas affected:
Children’s social care, children’s safeguarding, children’s fostering and adoption teams, children guardians.
Introduction
Re B (A Child) [2013] UKSC 33
The case concerned a child A aged three who was subject to care proceedings. A care order was granted by the first instance judge with a care plan of adoption. This was after the judge found that the threshold criteria set out in S31(2) Children Act has been crossed. The judge in this case at first instance found the threshold criteria had been met mostly in relation to the profound personality disorders of both parents and of their deep-rooted inability to accept professional help. The judge felt he could not protect the child from harm if the child were to be placed in the care of her parents. The J described “the likely emotional harm to A caused by the mother’s somalisation disorder, the parents’ personality trait, the mother’s lying, the father’s active but less chronic tendency to dishonesty and vulnerability to the misuse of drugs as well as the potential for physical harm to A which could not be discounted (for example by excessive and inappropriate treatment by doctors.)
The decision-making process for the judge in care proceedings is in two stages:
- the first being threshold criteria test, and
- secondly if the threshold has been crossed then what order if any is to be made.
The threshold criteria is set out in s 31(2) Children Act 1989:
A court may only make a care order or supervision order if it is satisfied—(a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to—(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.”
If the judge is satisfied from the evaluation of the Local Authority’s evidence that the threshold criteria has been crossed then the court will proceed to consider the welfare of the child and whether a care or other order should be made.
By the making of an interim care order or a care order there is an interference with a person’s family life; and the judge must therefore make his/her decision in a way which is compatible with the Art 8 right to respect for family life.
In the case of Re B, the mother appealed the first instance judge’s order and the case subsequently went all the way on appeal to the Supreme Court. By a majority of 4:1 the Supreme Court dismissed the mother’s appeal and decided that:
- The severity of the harm required is inversely correlated with the likelihood of the harm that is the less likely the harm is to occur the more serious the harm will need to be.
- The character of the parents is relevant at every stage of the inquiry, including the assessment of whether the threshold criteria have been crossed because the character of the parents may affect the quality of their parenting.
- A high degree of justification is needed if a decision is to be made that a child should be adopted or placed in care with a view to adoption against the wishes of the child’s parents.
- A placement order, or care order with a plan for adoption, should be made only as a last resort, where nothing else will do.
- The interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests
Re B-S (Children) [2013] EWCA Civ 1146
This case came after Re B (A Child) and in this case, the mother’s two children, aged four and five, were removed from her care. The children were subject to care and placement orders and the children were placed with prospective adopters. The mother sought permission to oppose the adoption order.
The court rules are that in an application to oppose an adoption order where a placement order has been made, the parent does not have an automatic right to challenge the making of an adoption order and requires permission from the court. The court cannot give permission unless it is satisfied that there has been a change in circumstances since the placement order was made.
In Re B-S, the mother was initially refused permission on the basis that she had no realistic prospect of her securing the return of the children to her care. The mother appealed to the Court of Appeal and here she was granted permission in light of the Supreme Court’s decision of Re B (A Child)
The Court of Appeal in Re B-S looked at the previous case law and considered whether the changes justified reopening the case which might in the past have placed greater emphasis on stability, and not enough on the concept that placement away from the birth parents was a last resort.
The court in Re B-S reviewed the case law and confirmed that the parents when submitting their applications have a two stage test:
(a) Has there been change of circumstances since the original order was made (which is an objective test)? and whether the parents has grounds for seeking leave. It should be noted that the test is not to satisfy a significant change but a change of circumstances.
(b) Does that change justify reopening of the case, with particular regard to the impact it might have on the child’s welfare and the placement (this being a decision for which the child’s welfare is the paramount concern)? This is a matter of judicial evaluation as opposed to an exercise of discretion requiring consideration of all the circumstances.
If the judge concludes that there has been a change of circumstances then the judge must consider very carefully whether the child’s welfare really does necessitate the permission being refused.
In Re B (A Child) the Supreme Court stated that adoption is the ‘last resort’ and only permissible if ‘nothing else will do’. It also stressed that the child’s welfare is paramount and that the child’s interests include being brought up by the parents and wider family unless the overriding requirements of the child’s welfare is such that is not possible.
The President of the Family Division in Re B-S also referred to several cases, including four Court of Appeal cases heard in July 2013, where the reports provided by the local authority and/or Children’s Guardian, and the judgment of the Court at first instance, where there was a significant lacking in the analysis of the options available for the child. The President states (at paragraph 40) “This sloppy practice must stop” and emphasised the need for a “global, holistic and 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”.
The court further gave guidance that the evaluation must not be a linear process, dismissing each of the options in turn until only adoption is left, but must be a real analysis of the pros and cons of each option. The President encouraged the use of a ‘balance sheet’ approach as suggested by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549. This requires entries on each side of the balance sheet, listing the certain benefits and detriments of each option, followed by the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue.
What is impact of Re B(A Child) and B-S?
- The starting point for all decisions about a child must be that the child’s welfare, being the paramount consideration. Re B (A Child) reminds us that the child’s interests include being brought up by the parents or wider family, ideally by at least one of his parents unless the overriding requirements of the child’s welfare make that not possible.The Supreme Court in Re B (A Child) makes it clear that severance of the family ties inherent in an adoption without parental consent is an extremely draconian step. And that adoption must be considered as a last resort, and that it can be appropriate only when ‘nothing else will do’ and when all else fails. To satisfy this criterion, the social worker’s analysis must show that the needs of the child for permanence and stability within an adoptive family outweigh all of the positive elements identified as being available through ongoing connection with the child’s parents or wider birth family. Therefore the Judge will only make an order if he/she considers it necessary to protect the interests of the child. The child’s welfare is paramount, and that 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.In considering the possibilities of a successful return home, protective factors need to be set against risk factors in the “balance sheet.”
- Before the court makes a decision which will separate a child permanently from the birth family, the court must be satisfied that all options including the provision of necessary support or services have been fully considered that would enable the child’s return home. This requires consideration of:
- whether there are any services that would provide the requisite assistance and support
- that the child has the adequate protection for the child, for him or her to remain within the care of the family and,
- whether the family are likely to engage with those services
- Before making an adoption order … the court must be satisfied that there is no practical way of the Local Authority (or others) providing the requisite assistance and support in order that the child can remain within the care of the family.Social workers in their evidence should consider and if appropriate or relevant identify any services or support needed to enable reunification. So if relevant, consideration should be given as to whether those services can be provided, how they will be provided and whether they will be accepted and used by the parents. The court will be alert to any possibility that resource implications might play any part in the placement decision, but there is no merit in providing services that do not properly address the family’s difficulties. The willingness and ability of parents to accept ongoing intervention and to use any services provided to effect and sustain a positive change for the child must be included as part of the analysis of the possibility of return home.The President in Re B-S directs judges to be particularly rigorous in questioning the local authority’s thinking if they suspect that resource issues are influencing the care planning for a child.
In the case of Re B(A Child) the child was not returned home because the court accepted the local authority’s case that the parents’ personalities and history were such that they would be unable to co-operate with any protective services.
- In Re B-S the court was clear in that it did not require Local Authorities to undertake further assessments but that that the available information is properly analysed and the conclusions justified. If this is not available then the court may require expert opinion, whether this from the social worker or the guardian, which is evidence-based and focused on the factors in the case. It should include analysis of all the possible options, and provide clear conclusions and recommendations adequately reasoned and supported by evidence. If sufficient evidence is not available before the court then further assessments or independent expert reports could be requested or directed which may lengthen proceedings so that the court can fully consider the expert reports or further assessments prior to making its decision.The court is not expecting a duplication of information already before the court. What it does require is a clear consideration of each available option for the child which should be considered as a standalone possibility on its own merits, rather than a linear dismissal of less draconian orders which leads to the inevitably option of adoption.On a practical note the social worker is not expected to list in their statements all available options but the relevant options for the child. Therefore in practice it may be that only two or three options are realistic possible placement options for a child, and it is only those that need to be considered in particular detail. However it is extremely important for the courts, for the parents, and ultimately for the child, that it is clearly understood in the social worker’s statement as to why one placement option has been given preference over the others. The statement must include an analysis of each option having been carefully considered with the positives and negatives balanced in a way that puts the child’s welfare at the centre of the decision making process
- The issue of proportionality in the context of adoption.The case of Re B(A Child) highlighted the interplay between the Children Act 1989 and the Human Rights Act 1998. And that the justification required to interfere with Article 8 rights by way of adoption remains high. A judge cannot properly decide that an order should be made unless the order is proportionate bearing in mind the requirements of Article 8, respect for family life. Therefore, an adoption order will only be proportionate if ‘nothing else will do.’
- Re B-S it made it clear that the fact that the child has been placed with prospective adopters or lapse of time cannot be a determinative factor, nor can the mere passage of time. The case also stressed that judges must not attach undue weight to the adverse impact on the prospective adopters and thus on the child. . However, the court will consider the age of the child and the longer the child has been placed with the prospective adopters the greater and the adverse impact of disturbing the arrangements are likely to be.
- 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 80 or even 90 years. Equally, judges will be careful not to attach undue weight to the short-term consequences for the child if permission to oppose the adoption order is granted.
- More appeals? The Court of Appeal acknowledged in Re B-S 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. Across the country Local Authorities may be experiencing the increase of parents applying for revocation of placement orders, leave applications and opposing of adoption proceedings in light of these recent case law and the judicial approach currently being given in such applications.
Conclusion
The case of Re B and re B-S has changed the landscape of permanency planning for children whose care plan is adoption.
- Placement orders were introduced in the Adoption and Children Act 2002; they were designed to consider dispensation of parental consent prior to the adoption proceedings. And to provide an element of certainty and a sense of assurance to local authorities and for prospective adopters when children were placed with them. The effect of these cases is that this confidence has now been removed to a certain extent which may act as a disincentive for prospective adopters to initially come forward. And when they proceed with their adoption application may find themselves, as respondents in direct opposition to the parents, (if necessary, assisted with careful case management and support from the local authority) They may require legal advice, possibly to be funded by the local authority so that the prospective adopters are actively involved in the proceedings.
- As a result of this level of uncertainty information to the child needs to be considered very carefully particularly:
- A child’s understanding when placed with prospective adopters may be that the placement/adoption is irrevocable. Life story work may have been undertaken whilst in foster care to prepare the child for their “forever placement”. Social workers will need to consider what information to provide to the child at the point of placement and whether the child should be told at time of placement with prospective adopters that this is now his/her forever family or should information be limited, reserved or qualified until the adoption order is granted.
- Whether children should be told that the final direct contacts with birth families members at time of placement with prospective adopters is in fact the final good bye/farewell contact.
- Changes in language or approach in the information provided to the child and/or the prospective adopters may result in a degree of uncertainty until the adoption order has actually been made. Such uncertainty will impact on the local authority’s ability to recruit more adopters which is in contradiction to current government expectation.
- There is an increased risk of potential for delay before an adoption order can be made if the court grants the parent’s application for leave even where placement orders have been made and even when the child has been placed with prospective adopters. This again goes against government’s current expectations in respect of adoption and the drive to speed up the process.
- Local authority social workers carry a greater evidential burden with a requirement for the presentation of a clear analysis and exploration of all available options including the availability of local authority support. Without this it will make the plan of adoption more difficult to achieve and open up the possibility of parent’s ability to reopen the case at a later stage.
How can Local Authorities minimise the impact:
Local Authorities may be reassured that the risks can be minimised initially by submitting robust evidence and care plans in the care and placement order proceedings.
- It is clearly accepted that Local authorities do not consider care plans for adoption orders lightly and will only propose such a plan if all other option including placement with kinship carers have been fully explored. The Supreme Court’s decision in Re B (A Child) supports the same approach and strongly suggested that local authorities must explore all possible alternatives before final orders are made. Before making the final order, the court must be satisfied that there is no practical way of the local authorities or others in providing the requisite assistance and support to the parents or family members to provide the parental care required. Robust evidence and clear analysis of this exploration will be required to be provided by the local authority in the care and placement order proceedings.
- Secondly, delay in finalising the child’s permanency plan can be further mitigated with firm judicial case management of any applications by birth parents. With clear directions sought by the local authority, including in relation to the filing of expert and other assessment as soon as the application for leave is issued will limit the amount of delay involved in the court granting its final order.
- The President indicated in Re B-S that the guidance in this case is to be followed as good practice, he stated: “we have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and the reasoning put forward in support of the case for adoption, both in the material put before the courts by local authorities and guardians but also in too many judgments. This is nothing new. But it is time to call a halt.” To assist social workers and the courts a new national social work template has been produced and is to be implemented within 6 months. Evidence is presented in future cases are now required to be “B-S” compliant which will mean less opportunity for possible appeals or re-opening of cases by parents.
How we can help
Look out for the next forthcoming briefing note which will be on the new national social work statement template and it assists social workers in ensuring that their statements are “B-S compliant.”
If you would like bespoke and practical skilled based training for social workers and team managers and how they can be supported in presenting evidence that is “B-S compliant” and meets the court’s expectations please contact us
Contact us if you would like training on this subject or any other area.
Call us on 01908 969 039 or 07949771285 or email: info@kingsleyknight.co.uk.
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