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Re B and what followed — the end of the story

Child removal iStock 000007583512XSmall 146x219Last year the Supreme Court handed down a key ruling on placing a child in an adoptive placement. Hannah Markham reviews recent developments following the case.

The case we all know as Re B [2013] UKSC 33 starting quite innocuously in Barnet Family Proceedings Court in May 2010. It ended some 44 months later in the High Court with a placement order via a now well-known detour to the Supreme Court.

The case itself, the details and facts have in many ways nothing unusual about them when compared to the vast array of ‘care cases’ which end up in the High Court. However the issues it highlighted, in particular the test for placing a child outside of his/her birth family in an adoptive placement, especially in cases where the risk is of future harm, have led to a refocusing by the courts on the way in which cases are presented and the way in which judgments are given.

The Supreme Court upheld the Judge at first instance, making it plain that they found that he had used appropriate and Convention-compliant ‘language’ in both expressing himself and his decision. His approach to the necessity of a care order with a care plan for adoption was found to be the right one – that there was no other viable option.

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Although the judgments of the Supreme Court did not make new law, a fresh emphasis on ‘proportionality’ is readily discernible. As Lady Hale put it (at para 198):

"Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where 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 was said in Re C and B [2001] 1 FLR 611, at para 34:

'Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interest of the child.'” (Para 198)

Applying these principles, Lord Neuberger, Lord Clark, Lord Wilson and Lord Kerr dismissed the parents’ appeal. Dissenting, Lady Hale considered that in the absence of a fresh in-depth enquiry adoption was not proportionate to the risks identified.

In fact, that fresh in depth enquiry did take place within the application for the placement order. The original application for the placement order was made in March 2012, at the same time and during the hearing for the care order. However there was insufficient time to consider evidence on the placement order and that application was left to be considered after the making of the care order.

As a result of the appeal process the Supreme Court decision was handed down almost a year to the day after the original decision. At the same time the Court of Appeal was gathering momentum through cases such as Re V (Children) [2013] EWCA Civ 913, Re P (A Child) [2013] EWCA Civ 96 and Re G (A Child) [2013] EWCA Civ 965, focusing on ‘holistic’ approaches to the evidence and reminding practitioners and Judges alike that robust overview of the evidence was required before sanctioning placement outside of the birth family and to justify such interference with family rights.

The Judge presiding over A’s case in Re B was clear that he would allow for updating evidence to be placed before him in order that he could assess what changes if any had taken place and whether in light of those changes he could still justify the care plan for adoption. Was there now a viable option open to the courts that saw A remaining in her birth family? Within the case the local authority and the guardian worried about the additional delay for A, she having waited so very, very long for a decision. However the Judge was clear (as it seems is the Court of Appeal): delay is sometimes a necessary casualty in the battle for achieving the right outcome for a child/children. The evidence must be clear in cases where severing of birth ties is the only realistic outcome and the one which was required for the child when considering her welfare for the whole of his/ her life.

Then the President handed down Re B-S (Children) [2013] EWCA Civ 1146. Had there been any residual doubt as to the approach the senior courts were taking towards ‘adoption’ cases, it was swept aside by this case. But was it new law? Had we been applying the wrong test? Certainly those of us presenting the case in Re B had not been under any illusion that rubber-stamping an application was not permissible, not with so much at stake for A and her family. Further the robust advocacy on behalf of the parents (through leading counsel) meant that there was never any risk of anything other than detailed scrutiny of the law and of the evidence.

Outside of Re B, other practitioners and it seems Judges worried that the test appeared to have become more robust and that adoptions were harder to argue now. My view is that this is not correct, nothing has changed, there is no ‘new law’, we are just being reminded as the Higher Courts often do, that we should not be complacent, nor lackadaisical in our approach to case presentation and analysis. The interference with family rights is such that all involved in cases where adoption is a realistic option should look very carefully at the other realistic options; that the local authority should try to propose supports to aid other avenues for the family, before reaching the final view that nothing else will do for the child for whom adoption is being argued.

This is nothing new. As Mr. Justice Baker said in Re HA (A Child) [2013] EWHC 3634 (Fam) (at paragraph 28):

"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."

In December the long-awaited final chapter in the Re B saga began: the court finally heard the evidence and submissions as to the need for a placement order for child A. Submissions focused on recent case law and arguments were heard as to the evidence of change in the parents. A child and adolescent psychiatrist of some renown was brought in to asses A, to see whether adoption was viable for her, looking at her life story and attachment patterns. The fresh review felt to be too late by Lady Hale, did in fact take place and the decision was that there were no other realistic options open to the court for this little girl and her parents.

In the judgment handed down on 9 January 2014, a Placement order was made (the judgment will be published once edited). Whether this is the end of the ‘legal’ story is not yet clear as the parents have indicated a desire to appeal. However for A, her ‘story’ will continue whatever the outcome and one can but hope that she finds a happy, stable loving home sooner rather than later, because she really cannot wait any longer and needs to move on and to settle.

Hannah Markham is a barrister and head of the children team at 36 Bedford Row. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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