http://www.parentsaccused.co.uk/?p=378
Time to Call a Halt’ to Sloppy Practice in Adoption Cases
Re B-S (Children) [2013] EWCA Civ 1146
In this recent Court of Appeal case, the President of the Family Division, Sir James Munby, expressed concern about how courts are approaching ‘non-consensual’ adoption:
“We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new but it is time to call a halt.” [30]
Sir Munby goes on to set out what should be happening as ‘good practice’ within adoptions. This includes the local authority and guardian providing full evidence which considers all of the options which are ‘realistically possible’ for that child and must set out reasons for and against each option. Further, it is essential for the courts to give adequately reasoned judgments; the judge must carry out a proper balancing exercise.
In relation to how this good practice will fit with the new 26 week timescale for care proceedings, it was said that:
“If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.”[49]
The law under which placement orders and adoption orders are made was considered, with the Court of Appeal noting that there does not need to be a ‘significant’ change in circumstances to revoke a placement order, but the change in circumstances needs to be sufficient to start the process.
The right to apply for leave to revoke a placement order, as a parent, ceases when a child is placed for adoption. The only further challenge available to a parent is when the adoption order is applied for and the parent can seek leave to oppose the adoption order. This application has a two stage test: Has there been a change in circumstances? If so, should leave to oppose be given? This second stage will include consideration of the parent’s prospect of success as well as the effect on the child.
It is noted that Article 8 of the European Convention of Human Rights (the right to family life) supports, through case law, the principles that every effort should be devoted towards reuniting the family and that family ties should only be severed in very exceptional circumstances.
Sir Munby also considers, at paragraph 29, the local authority’s role in making care or supervision orders work successfully and not allowing lack of resources to prevent this:
“The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking” [29]
The effect of this case is likely to be far-reaching and it is already being relied upon across the country. It serves as a strong reminder that local authorities and courts must properly balance the options available for a child and consider the arguments for and against each option, irrespective of the 26 week timescale.
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