Children law update

The Supreme Court’s decision in Re B (A Child) [2013] UKSC 33 has far reaching implications for public law proceedings, providing the approach to be taken, particularly by the judiciary and assisted by practitioners, when determining an application for a care order.

The child (C) was removed from her parents at birth under an interim care order (ICO). The mother had been in an abusive relationship for many years and had diagnoses of somatisation and factitious disorder. She had convictions for dishonesty and making false allegations. The father had been convicted of many serious criminal offences and had a history of drug use. The trial judge found that if C was placed in her parents’ care, there was a risk she would suffer impairment of her emotional development and that the parents would not “have the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where C would be safe and protected from emotional and/or physical harm.” A care order was made with a plan for adoption.

Threshold criteria

The Supreme Court’s focus was how the court should proceed, having found the threshold criteria satisfied, in deciding whether to make a care order with a plan for adoption. Lord Neuberger set out the approach to this question in paragraphs 72-79 of the judgment.

(1) For adoption is “a very extreme thing, a last resort”; “the most extreme option” to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare”.

(2) A judge cannot properly decide that a care order should be made in such circumstances unless the order is proportionate bearing in mind the requirements of article 8 ECHR.

(3) If a judge concludes the section 31(2) threshold is met she should only make an order if she considers it necessary to protect the interests of the child by which it is meant that it is permissible only where “nothing else will do”.

(4) The relationship with parents should be maintained unless no other course was possible in the child’s interests.

(5) An order should only be made if it is required by the overriding necessity of the child.

The issue of proportionality is fundamental to any public law proceedings but its practical importance was highlighted in this case to ensure both ends of the scale: this being the harm or risk of significant harm to the child and the prevention of that harm or risk of significant harm, being completely balanced.
The judiciary is required to consider whether the permanent removal of a child from the parents is proportionate when set against the risk of harm to the child by the parents’ care in the future.
This places great emphasis on the need of the judiciary to carefully scrutinise the care plan to ensure proportionality is its focus, and avoid the flawed decisions of trial judges which have risen to the surface in light of Re B.
As readers will know, the Children and Families Bill when passed will likely contain a clause which will reduce the court’s role in scrutinising the child’s care plan which itself poses a challenge to how judges will approach the task of considering proportionality of the care plan and what order ?to make.

Last resort

The inference of this decision for practitioners is that it suggests it may be more difficult to satisfy the court that adoption is an appropriate plan for a child and that significant evidence will be required to satisfy the court that adoption is the ‘last resort’; the duty of obtaining such, resting with the local authority which already function over and above their resources.

Ultimately however, determination of proportionality is the responsibility of the court.

Re B related to a care plan for adoption however the Court of Appeal has gone further to say that “the type of intervention considered in Re B... must similarly apply to lesser forms of intervention.” (per McFarlane LJ in G (A child) [2013] EWCA Civ 965).

A care plan for adoption is intended to establish permanence for the child. However it can be easily overlooked that long-term foster care can, in fact, establish the same permanence for the child and in fact for many looked-after children, permanence can be achieved through a successful return to the child’s birth family. The Department for Education recently closed its consultation on improving permanence for looked-after children, where question 4 asks: “Do you agree that the definition of permanence should be amended so that it encompasses long-term foster care?”

Calling a halt

Following Re B, the court further considered the expectations in care proceedings and a huge concern of the Court of Appeal was highlighted by Munby P in Re B-S (Children) [2013] EWCA Civ 1146 as 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 too in many judgments. This is nothing new. But it is time to call a halt”.

There is no doubt that following this judgment renewed focus has been placed on social work practitioners to implement best practice. In particular there is an additional obligation on local authority solicitors to ensure their social work clients are compliant with the courts’ stipulation of the evidential requirements following Re B ?and Re B-S.

What is required from practitioners is a careful balancing exercise of every placement option, the advantages and disadvantages of each option in light of the welfare checklist, which would then assist the judge hearing the case to formulate her own analysis to determine what order(s) to make. At paragraph 48 of his judgment Munby P stipulates that “what the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in the particular case, which analyses all the possible options and which provides clear conclusions and recommendations adequately reasoned through and based on ?the evidence.”

Clear pathway

Practitioners, particularly those representing respondents in such proceedings would welcome this clear pathway.

However, its timing, in coinciding with the opening of a new door in public law proceedings restricting the timescales for such cases, presents concern for those involved. It will be a lengthy process collating the rigorous cogent evidence now required.

The court has acknowledged the difficulty of doing this in light of the revised pilot of the Public Law Outline. At paragraph 49 of his judgment Munby P advises: “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... Critical to the success of the reforms is robust judicial ?case management.”

It remains to be seen whether such an exception will be used commonly in practice as much of the 26-week deadline relies on local authority practitioners to engage pre-proceedings stages early to ensure parents can obtain legal advice and consider co-operating with the authority to attain what is best for their child/children’s ?welfare and to address any parenting deficits which are identified.

These judgments were complemented by Re W [2013] EWCA Civ 1227 where Ryder LJ clarified the differing roles of practitioners in care proceedings: “To put it in stark terms, it cannot be right that in one local authority a child would be placed with a parent or other kinship carer with significant support to meet the risk whereas in another local authority the same child would be placed with a view to adoption in the implementation of a plan to meet the same risk. The proportionality of placement and order are for the court. The services that are available are for the authority”.

Local authorities must facilitate the court by providing a proper breakdown of every option available to the court, ranging from the least interventionist to the most. This breakdown ?must be supported by evidence and show in ?detail the individual benefits and drawbacks of each alternative. Whichever order the local authority is recommending it must be proportionate and persuade the court that nothing short of it will do.

Test for leave to oppose

Re B-S also considered the section 47 (5) test for leave to oppose. The court asked two questions:

1. Has there been a change in circumstances?
2. If there has been a change in circumstances, should leave to oppose be given?

The change in circumstances need not be significant but must be of a nature and degree sufficient to reopen consideration of the issue (Re P (2007) 2 FLR 1069). If a change of circumstances is established the child’s welfare will be the paramount consideration when deciding whether leave to oppose should be given.

It would appear that courts have been too readily refusing leave to oppose cases without giving proper consideration to the facts. The Court of Appeal discouraged previous decisions which may have applied the test stringently. The application of this test is perhaps welcome news for parents who will have to overcome a lower barrier then has previously been applied.

All circumstances need to be considered including the prospect of resisting the making of the adoption order, whether the parent has solid grounds for seeking leave, whether the child’s welfare necessitates the refusal of leave, all the pros and cons of giving or refusing the parent leave to oppose.

The greater the change in circumstances and the more solid the parents’ grounds for seeking leave to oppose, the more compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused. The child being placed with  prospective adopters or the mere passage of time cannot be determinative and the welfare of the child is paramount “throughout his life” which is effectively the  extended welfare test under the Adoption and Children Act 2002.

At the forefront of this two-stage test is judicial evaluation. It therefore only needs to be demonstrated to be wrong to be overturned on appeal, when historically the test on appeal would have been that the decision was plainly wrong which was a much higher threshold to overcome.

There are several other Court of Appeal judgments which have recently been handed down which add further flavour and texture to how the higher courts expect all courts to handle and manage these very serious public law ?children cases. Amendments to primary ?legislation through the passage of what will be the Children and Families Act provide will undoubtedly lead to further judgments of our higher courts which will hopefully assist all practitioners in ?what is a challenging and interesting time for family justice.

 

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

childrenslegalcentre.com

 

 

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