Top judge recognises tension over court rulings and guidance on adoption

The President of the Family Division has acknowledged the tension between Government guidance on adoption and recent rulings by the Supreme Court and the Court of Appeal, admitting that it must be difficult for social workers to know what they should be doing.

In B-S (Children), Re [2013] EWCA Civ 1146 (17 September 2013) the Court of Appeal – with the President, Sir James Munby, giving the judgment – highlighted the “stringent and demanding” test to be met if the consent of a parent with capacity is to be dispensed with under s. 52(1)(b) of the Adoption and Children Act 2002 and the adoption is to go ahead.

“Just how stringent and demanding has been spelt out very recently by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria),” Sir James said in the Re B-S ruling.

He added: “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’.”

However, local authorities are reported to have struggled to reconcile this approach with revised statutory guidance on adoption published by the Government last year.

In this guidance the Department for Education said: “The local authorities that are most successful in finding adoptive families for looked after children will generally be those with a very clear care planning process that always considers adoption as a possible permanence option and not an option of last resort.”

Asked about the issue by Local Government Lawyer at a press conference yesterday (29 April), Sir James responded: “Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the judges to decide what the statute means.

“The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so.”

But the President added: “I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in Re B in the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year…..

“So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law.”

The Family President added: “In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.”

Graham Cole, Lead Officer for the Children’s Services & Education special activity area of Lawyers in Local Government, said: “It is helpful to know that Munby LJ acknowledges tension between Government guidance on adoption and recent rulings by the Supreme Court and the Court of Appeal and the difficulties that this presents for local authorities. However, that still leaves local authorities with acute dilemmas when determining the future of vulnerable children in a way that safeguards and promotes their long-term welfare.

“Local authorities are having to manage this tension against the backdrop of shrinking resources, new requirements to avoid delay and indications from central government that their adoption functions will be taken away from them if they do not place more children for adoption. This is a ‘tall order’, but we remain committed to improving outcomes for children entering the care system.”

In other remarks at the press conference, Sir James said the process of family justice reform – “whether in public law cases, in private law cases, where the problems…. are particularly acute, or in financial cases” – was “driven by the need, not merely a bureaucratic and administrative need, but a need in the interests of children and [families] to have a quicker and more streamlined process which, critically, cuts out unnecessary directions hearings, unnecessary review hearings”.

He suggested that the fruits of that process were already being seen in public law cases where the number of hearings was being reduced and where, as a result of robust case management, the changes in relation to experts and other reforms, the hearings which were taking place were taking less time.

The President said he was “confident that we can achieve the same in private law cases, that is to say, in each case fewer hearings and hearings which are shorter”.

He added: “That will free up and is in the public law context already freeing up a significant amount of court time and that freed up court time will enable us to achieve two things: first, accommodating the fact that litigant in person cases may take longer than cases where the parties are represented, and also tackling the still, in some areas of work, some areas of the country, unacceptable delays in getting hearing dates.”

Sir James meanwhile confirmed that he would be consulting in the very near future on the next stage in reforming the rules about access to and reporting of family cases.

A start had been made, by more judgements being published and reported upon, but more needed to happen – albeit incrementally, he added.

One of the next steps, Sir James said, will be to consider whether the media should be entitled, subject to appropriate safeguards and conditions, to access to at least some of the court documents.

This might then “overcome the problem that the reforms of four years ago – the reforms of April 2009 which entitled the media to attend Family Court proceedings – have proved completely futile, both from the media’s point of view and from every other point of view.

“Because without access to any of the documents it’s almost impossible for the media to understand what is going on and that seems to me to be a major problem on which we need to move forward.”

The President added that one of the key issues in this regard was that the process was increasingly based upon pre-reading of documents.

“How one goes about the process of having a more informative court list while maintaining the proper privacy of the children and the other parties is a technical matter. It’s a difficult matter. It’s an important matter but one we have got to overcome,” he said.

In a speech later to members of the judiciary, the President praised the efforts of those involved in public law cases to implement the family justice reforms.

He said: “[The] reforms which we all in our hearts knew were essential could be achieved only if all the professionals in the family justice system played their part. And everyone has risen to the challenge.

“The result of everyone’s dedication and hard work has been a continuing reduction in the time that care cases are taking. Large numbers of the older cases have now been resolved. The backlog is reducing both in size and in age.”

This, the Family President said, was “a remarkable achievement in which we can all – every one of us in the family justice system – take pride.”

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