Laura Briggs writes on Re W (A Child) [2016] EWCA Civ 793

Articles | Mon 12th Sep, 2016

This judgment, handed down by the Court of Appeal just before the Summer break, is an appeal from the judgment of Bodey J in which an application for adoption was refused because a realistic placement with family carers, who had been unaware of the proceedings, emerged after the granting of a placement order.

The child concerned (“A”) was born in May 2014. Care proceedings concluded in October 2014 when care and placement orders were made. During those proceedings the local authority were not able to trace the paternal family owing to non-cooperation of the maternal family. A was placed for adoption in December 2014 and an application for adoption was then made. By this time, the parents had had another child (a full sibling) and in care proceedings relating to that child, paternal grandparents had come forward and been granted a Special Guardianship Order. The paternal grandparents applied for permission to oppose the adoption of A and for leave to apply for a private law order (Child Arrangements Order or Special Guardianship Order) for the child to be placed in their care.

The applications came before Bodey J and on 20 May 2016 that application was refused and an SGO granted to the child’s paternal grandparents. That order was stayed and the child remained with her prospective adopters pending the outcome of the instant appeal, in which judgment was handed down on 29 July 2016.

The issues identified by the Court of Appeal in this appeal were:

  • The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;
  • The application of the Supreme Court judgment in Re B (“nothing else will do”) in that context;
  • Whether the individuals whose relationship with a child falls to be considered under the Adoption and Children Act 2002, s1(4)(f) is limited to blood relatives or should include the prospective adopters;
  • Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act 1998 in such circumstances and if so, which rights are engaged.

The evidence before Bodey J in May was found by the Court of Appeal to be deficient in that there was minimal consideration given to the status quo, ie the child’s placement with the prospective adopters and the impact of the proposed change in circumstances if A were to move to her grandparents, with whom she had no existing relationship. The starting point for the analyses of both the children’s guardian and the local authority was a presumption that the child should be within her biological family, regardless of the other matters in the welfare checklist which pointed towards the child potentially suffering harm if she were to be moved, her existing relationships with adopters who were her primary attachment figures and the benefits in terms of practical care she would receive if she stayed where she was. Much of the judgment (paragraphs 16 – 33) is dedicated to an analysis of the failings of the written and oral evidence before the court and makes salutary reading. The thrust of the criticism of both the independent social worker and the children’s guardian is that their assessments are skewed as a result of their misapprehension of the law.

The Court of Appeal went back to both welfare checklists (in the Children Act and the Adoption and Children Act) as the starting point in any decision within these proceedings. The welfare evaluation must, the court held, be conducted in the reality of the child’s circumstances post adoptive placement. That means a child for whom interference with family life has already taken place and as a result a child has been placed with another family.

In respect of the welfare analysis, Lord Justice McFarlane said at paragraph 65:

“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.”

McFarlane LJ went on to say that post placement, “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”… and “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”. Pre-placement, the ‘status quo’ argument, it was pointed out, rarely comes into effect because the placement, often with short term foster carers, is a short term one. Post placement, this changes.

Following that, the court held that when considering the value of relationships the child has with family and any ‘relevant person’ at s1(4)(f)`, the prospective adopters are plainly relevant and ought to be considered.

At paragraphs 68-70 the Court gives yet another warning about the misapplication of the phrase ‘nothing else will do’ as a shorthand test, substituted for a full welfare analysis.

The Court of Appeal goes on to say in clear terms that there is no presumption of family placement at paragraph 71:

“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.”

Reading the above statement out of context would in all likelihood sit uncomfortably with many family lawyers, but given the vastly variable circumstances in which family relationships arise between children and individuals who are not part of their birth family, any question of the existence of a presumption in favour of family based on blood alone is dispensed with in this case.

The appeal was successful and the case was remitted to the Family Division for rehearing, Jackson LJ observing that whatever the outcome of that hearing, the ultimate arbiter of whether the decision was correct or not will be A herself.

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