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Munby: It's down to parliament to change the law on adoption

President of Family Division comments on 'last resort' guidance

7 May 2014

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Sir James Munby said he "would be foolish not to acknowledge" the clear tension between the government and judges on adoption, following a speech to mark the significant family justice reforms last week.

His comment came when asked for any advice for councils threatened by the government with losing their local authority powers if they failed to place more children for adoption.

"There is a clear tension between what the Supreme Court said in Re B and what the government said in guidance, which it issued only a few months before," he said.

"The Supreme Court said that adoption is the last resort, the government, as I recall in the guidance it gave, said that local authorities should get away from the idea that adoption is the last resort."

He added: "Under our system, parliament makes the law. The judges interpret the law and if the parliament does not agree with the judges' interpretation of the statute they passed, then the remedy is for parliament to change the law."

The parents in Re B (A Child) [2013] went to the Supreme Court after the Court of Appeal ruled their child should be placed under a care order with a view to adoption.

The Supreme Court supported the decision but added that adoption was a last resort for children in such cases.

Munby said he appreciated that it must be difficult for social workers to know exactly what they should be doing given
the tension.


Assist the court to do its job

Noel Arnold is director of legal practice at the Coram Children's Legal Centre

Arguably, there's a tension between government policy and the court's job of applying the law in each case. Government wants more children placed with adopters because this would reduce the number of children in care. Most consider this honourable. Those more sceptical are worried this is only about numbers and quotas.

However, not all children are 'languishing' in care. Adoption isn't the right form of placement for all children, which is why the court decides what order to make. Only if adoption is the best placement plan will the courtauthorise (dispensing with parental consent) the child's placement with prospective adopters, who will later apply for an adoption order.

I don't think government is asking the court to make more adoption orders. It's asking local authorities to be better at placing children. Those representing parents shouldn't worry about the apparent tension. They should robustly represent their clients' positions and assist the court to do its job: deciding, having heard evidence and legal argument, what's in the child's best interests.

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