You may be aware that the recent Court of Appeal case of Re W  EWCA Civ 793 has been causing some head scratching among commentators, particularly @suesspiciousminds. You can also read articles and summaries by @familylawweek and @CommunityCare.
There is no doubt this was a difficult case. The CoA heard an appeal from prospective adopters (with whom the two-year-old child had already been placed for 18 months and their application for an Adoption Order was over a year old) against a decision of Bodey J to dismiss the adoption order application and instead make a Special Guardianship Order in favour of the child’s Paternal Grandparents.
At the time of the original care proceedings, the parents were quickly ruled out. They did not co-operate with the Local Authority to identify the paternal family members; therefore no assessment ever took place. The child was made subject to a placement order in October 2014 and she was placed with adopters shortly thereafter in December. They applied for an adoption order in April 2015.
While awaiting the hearing of the adoption application, the parents had a second baby. This time the paternal family were made aware and this child was placed with the Paternal Grandparents. At this point, the Paternal Grandparents became aware of the existence of the first child and indicated that they wished to care for her as well. They were given leave to apply for a Child Arrangements Order and SGO and the proceedings were consolidated. An Independent Social Worker assessment was commissioned; the report recommended that the child be placed together with her sibling with the Paternal Grandparents. The Children’s Guardian concurred with this view.
Bodey J said he “agonized over” the decision, but ultimately ordered that there should be a sensitive move of the child from the adopters where she was well-settled, back to he care of her natural family, namely her Paternal Grandparents. He determined that this was in her best interests, taking account her welfare throughout her life and balancing this with any shorter term disruption.
The decision was overturned on appeal. This is in part because of the undue reliance which the Judge placed on the evidence of the Independent Social Worker and Children’s Guardian – failing to properly take account of deficits in their analyses –and because the Judge had not placed enough weight on the potential harm that would be suffered by the child during the transition process, there being little evidence in respect of this before the Court.
What is more significant, however, are the comments made by McFarlane LJ about the weight to be placed on the established relationship between the child and the prospective adopters in a case such as this, and how to balance that with the relationship between the child and its natural family.
The relevant passages are below:
Welfare valuation post adoptive placement
- Although Mr Feehan did not advance his overarching submission to the effect that allowing any application to prevent an adoption where a child has spent a sufficient time with an adoptive family would be a breach of public policy and/or human rights, the factors which may underlie such a submission are nevertheless valid. Placing a child for adoption is an act of altogether higher significance than arranging a foster home under the umbrella of a care order. Foster carers will seldom expect permanence and, indeed, will have been trained so as to be able to support the child moving on if required to do so in time. Whilst undoubtedly foster carers and fostered children may achieve a fondness for each other, the establishment of a firm and secure attachment is not one of the primary aims of the placement, in contrast with adoption. One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters.
- Where an adoptive placement has been made and significant time has passed so that it can be seen that the looked for level of secure, stable and robust attachment has been achieved, the welfare balance to be struck where a natural family claimant comes forward at this late stage to offer their young relative a home must inevitably reflect these changed circumstances. At the earlier time when a placement order is being considered, that side of the balance, which must now accommodate the weight to be afforded to the child’s place within the adoptive family, simply does not exist. The balance at the placement stage, therefore, naturally tilts towards a family placement where the relatives have been assessed, as these grandparents have, as being able to provide good, long term care for a child within their family. At the placement order stage, the other side of the scales (against a family placement) are likely to be populated by factors such as the risk of harm and the need to protect the child. The question of harm to the child occurring as a result of leaving their current placement will normally not arise as a factor at the pre-placement stage given that such a child is likely to be in temporary foster care and will have to move in any event either on to an adoptive placement or back to the natural family.
- In a case such as the present, where the relationship that the child has established with new carers is at the core of one side of the balancing exercise, and where the question of what harm, if any, the child may suffer if that relationship is now broken must be considered. The court will almost invariably require some expert evidence of the strength of the attachment that exists between the particular child and the particular carers and the likely emotional and psychological consequences of ending it. In that regard, the generalised evidence of the ISW and the Guardian, which did not involve any assessment of A and Mr and Mrs X, in my view fell short of what is required.
- This court recently considered similar issues to those in the present case in the appeal of Re M’P-P  EWCA Civ 584. In that case the issue was whether two children who had effectively lived for all their lives with a local authority foster care should be adopted by her or placed with a paternal aunt who was a total stranger to them. At paragraph 47 onwards in the judgment of McFarlane LJ, consideration is given to the balance, in a public law case, between a ‘family’ placement, on the one hand, and the ‘status quo’ that may, unusually, be established on the facts of a particular public law case on the other. I repeat those words here for they seem to have equal application to the present case:
47. At the beginning of this judgment I indicated that the appeal, in part, raises the question of the relative weight that is to be attached to the issues of ‘status quo’ and ‘family’ when they appear to be in opposition to each other in proceedings relating to a child. In recent times the importance of a local authority and the court giving full weight to the importance of a ‘family’ placement, unless this is established to be so contrary to a child’s welfare that a long-term placement in public care or adoption is necessary, has been stressed in a range of decisions, of which Re B and Re B-S are the most prominent. Less has been said in the recently reported cases about the weight to be afforded to the bundle of factors that family lawyers have historically referred to as ‘the status quo argument’. That this is so may, in part, be a consequence of the status quo simply not being a factor in many public law cases where, at the time of the final hearing, the child is, on any view, in a home that is temporary; the dispute is normally about the home to which the child is to move (be that in the family or with strangers) with no option to stay where he is.
48. The validity of the status quo argument is certainly well established in the pre-CA 1989 authorities. In D v M (Minor: Custody Appeal)  3 All ER 897, Ormrod LJ said: ’… it is generally accepted by those who are professionally concerned with children that, particularly in the early years, continuity of care is a most important part of a child’s sense of security and that disruption of established bonds is to be avoided whenever it is possible to do so. Where, as in this case, a child of two years of age has been brought up without interruption by the mother (or a mother substitute) it should not be removed from her care unless there are strong countervailing reasons for doing so. This is not only the professional view, it is commonly accepted in all walks of life.’ Factors in any particular case relating to the status quo will fall to be considered in a case to which CA 1989, s 1 applies under s 1(3)(c) where the court must have regard to ‘the likely effect on [the child] of any change in his circumstances’.
49. In more recent times the prescient observations of Ormrod LJ, which were made at a time when the early work of John Bowlby and others on ‘Attachment Theory’ was available, have been borne out by the enhanced understanding of the neurological development of a young child’s brain that has become available, particularly, during the past decade. As a result, the importance of a child’s attachment to his or her primary care giver is now underpinned by knowledge of the underlying neurobiological processes at work in the developing brain of a baby or toddler.
50. In the context of ‘attachment theory’, the wording of ACA 2002, s 1(4)(f), which places emphasis upon the ‘value’ of a ‘relationship’ that the child may have with a relevant person, is particularly important. The circumstances that may contribute to what amounts to a child’s ‘status quo’ can include a whole range of factors, many of which will be practically based, but within that range the significance for the child of any particular relationship is likely to be a highly salient factor. The focus within CA 1989, s 1(3)(c) is upon the ‘likely effect on’ the child of any change. The focus in ACA 2002, s 1(4)(f)(i) is upon ‘the value to the child’ of any particular relationship continuing.
51. It is not my purpose in this judgment to express a view upon the relative importance of attachment/status quo arguments as against those relating to a placement in the family. Each case must necessarily turn on its own facts and the weight to be attached to any factor in any case will inevitably be determined by the underlying evidence. In any event, for reasons to which I have already adverted, it is not necessary to do so in this case as, unfortunately, the judge does not appear to have engaged in any real way with the effect on the children of moving them from the care of their primary, and only, attachment figure or with the value to them of maintaining that relationship.’
“Nothing else will do”
- Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:
“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.” The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S  EWCA Civ 1146, Re R  EWCA Civ 715 and other cases).
- Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.
Natural family presumption/right
- With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.
- The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child)  EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:
’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)). … 94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.’
- In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.
- It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.
- The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.
- As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.
Judge’s description of the law
- I have already described the unfortunate omission from the judge’s summary of s 1(4)(f) of any reference to Mr and Mrs X and their relationship with A. That omission, which is significant in that the word “relatives” is repeated three times without extension to the proposed adopters is, in my view, to a large degree remedied by the prominence that the judge gives to A’s placement and relationship with Mr and Mrs X in his ultimate welfare analysis. In like terms, I have already indicated that insofar as the judge was selective in the quotations that he made from the factors listed in paragraph 74 of Re B-S, this experienced judge who has regularly considered the paragraph as a whole cannot be said to have been in ignorance or have ignored any of the other points within it.
- Of greater note is the absence from the judgment of any reference to the relevant parties’ human rights under the ECHR. As a caveat at the end of the approved transcript of the judgment the judge has appended the following note: “As I said to Mr Todd after delivery of the Judgment, I have of course had regard to the various Article 8 rights to respect for private life which are engaged here, but I do not find in practice in cases like this that they add anything in reality to the statutory welfare test.”
- Ultimately, Bodey J may well be correct that in the ordinary run of cases balancing the Article 8 rights to family life of the respective parties and the child will often not add to or alter the judge’s welfare analysis under domestic law. Strasbourg jurisprudence has long endorsed the attribution of the status of paramount consideration to the child’s welfare under English domestic law. Where ECHR considerations often do, and must, add a dimension, is on the question of necessity and proportionality where the outcome that the court is considering is some form of state intervention in family life; hence “nothing else will do”.
- The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
- If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.
There would be few family practitioners who would argue against the notion that the child’s relationship with the prospective adopters and the impact upon her of being moved from their care is a very significant factor which the court must consider in such a scenario. I am sure most would also agree (as was found) that the prospective adopters would automatically be “any other person” in respect of whom the Court would take into consideration the child’s relationship in accordance with s.1(4)(f) Adoption and Children Act 2002. McFarlane LJ’s description of how the landscape is different at the time of making a Placement Order to the time of deciding an Adoption Order is undoubtedly right.
What some may find very surprising, however, is that McFarlane LJ boldly asserts that there is no presumption or right of a child to be brought up by their natural family. He says “this needs to be firmly and clearly laid to rest”. Many readers will no doubt be of the view that there is an established right of a child to be brought up by their natural family (certainly their parents).
Reading Re B  UKSC 33 alone, and merely scratching the surface of the relevant domestic and European case law, one finds these passages, cited with approval:
In a number of its judgments the European Court of Human Rights, “the ECtHR”, has spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. Only a year ago, in YC v United Kingdom (2012) 55 EHRR 33, it said:
134 The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child’s best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained.”
I understand the concern which Lady Hale expresses in her judgment at paras 208-222, which in many respects reflect the very wise remarks made by Hedley J in Re L (Care: Threshold Criteria)  1 FLR 2050, 2063. Although they have been referred to by Lady Hale at paras 181-182 and Lord Wilson at para 27 and were set out in full by Black LJ in the Court of Appeal,  EWCA Civ 1475, para 116, those remarks merit repetition, not least because they have resonance in relation to both main issues in this case:
”50. What about the court’s approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it’s intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in In re KD (A Minor: Ward) (Termination of Access)  1 AC 806, 812, said this: ’The best person to bring up a child is the natural parent….
It seems to me to be inherent in section 1(1) that a care order should be a last resort, because 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. That is reinforced by the requirement in section 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras 195-198 make it clear that such an order can only be made in “exceptional circumstances”, and that it could only be justified by “overriding requirements pertaining to the child’s welfare”, or, putting the same point in slightly different words, “by the overriding necessity of the interests of the child”. I consider that this is the same as the domestic test (as is evidenced by the remarks of Hale LJ in Re C and B  1 FLR 611, para 34 quoted by Lady Hale in para 198 above), but it is unnecessary to explore that point further.
The high threshold to be crossed before a court should make an adoption order against the natural parents’ wishes is also clear from UNCRC. Thus, Hodgkin and Newell, Implementation Handbook for the Convention on the Rights of the Child, Unicef, 3rd ed (2007), p 296, state that “there is a presumption within the Convention that children’s best interests are served by being with their parents wherever possible”. This is reflected in UNCRC, which provides in article 7 that a child has “as far as possible, the right to know and be cared for by his or her parents”, and in article 9, which requires states to ensure that
“a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”.
These observations are also reflected by concerns expressed more broadly by Sloan, “Conflicting rights: English adoption law and the implementation of the UN Convention on the Rights of the Child”  CFLQ 40. That Article at pp 49-50, suggests that, whereas UNCRC is “neutral about the desirability of adoption” (quoting Hodgkin and Newell, op cit p 294), the 2002 Act “unashamedly aimed to bring about ‘more adoptions more quickly’ for children in care” (quoting Harris-Short, “New Legislation: The Adoption and Children Bill – A Fast Track to Failure?”  CFLQ 405). More specifically, the Article identifies a suggested inconsistency between the approach of the Court of Appeal in Re C (A Child) (Adoption: Duty of Local Authority), reported as C v XYZ County Council  Fam 54, at para 15, and that of the High Court in Re A (A child) (Disclosure of Child’s Existence to Paternal Grandparents, reported as Birmingham City Council v S  1 FLR 1223, at paras 73 and 76. In Re C, it was said that “the 2002 Act does not privilege the birth family over the adoptive parents simply because they are the birth family”. In the Birmingham case, which Sloan suggests is more in line with the policy of UNCRC, Sumner J described adoption as “a last resort for any child” to be invoked only “when neither of the parents nor the wider family and friends can reasonably be considered as potential carers for the child”, and he went on to recognise a child’s “right to be brought up by her own family”.
We were not addressed on this Article or on those two cases. However, they all give added weight to the importance of emphasising the principle that adoption of a child against her parents’ wishes should only be contemplated as a last resort – when all else fails. Although the child’s interests in an adoption case are “paramount” (in the UK legislation and under article 21 of UNCRC), a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.
Once the threshold is crossed, section 1(1) of the Children Act requires that the welfare of the child be the court’s paramount consideration. In deciding what will best promote that welfare, the court is required to have regard to the “checklist” of factors in section 1(3). These include, at (g), the range of powers available to the court in the proceedings in question. By section 1(5), the court must not make any order unless it considers that doing so would be better for the child than making no order at all. The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.
It is well-established in the case law of the European Court of Human Rights that “the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by article 8 of the Convention” (Johansen v Norway (1996) 23 EHRR 33, among many others).
The above alone, in the reader’s view, firmly establish a “right” of a child to be brought up within his/her natural family. This must be a presumption and the starting point of the law. The impact of McFarlane LJ’s comments – which he appears to intend to be wide-reaching – remain to be seen. How often does one see reference within a Guardian’s analysis to the child’s “right to be brought up within their birth family”?
McFarlane LJ also goes on to express the (albeit “tentative”) view that in this scenario, the child and the Paternal Grandparents – who have never met – do not establish sufficient “family ties” to be afforded Article 8 rights; therefore the proportionality exercise need only be undertaken as to the interference with the child’s Article 8 rights to family life established with the prospective adopters. Can this be right?
Whether any consequences will flow from this surprising judgment remains to be seen.