And what do we mean by ‘nothing else will do’?
Introduction and summary
Adoption proceedings are dealt with by the Adoption and Children Act 2002. I agree that adoptions can be ‘forced’ in that the court can make an adoption order without getting the parents’ consent. But I don’t agree that this equates to a deliberate plot to target ‘adoptable’ children to get them into the system.
I believe that parents’ rights to be heard and produce evidence about what they think is the best outcome for their child are real and usually respected in the system. Judges have warned against the dangers of ‘social engineering’ for many years now.
In this post I consider the relevant case law which the court must have in mind when considering making a final care order which has a plan for adoption. The case of Re B-S in 2013 caused a stir amongst lawyers and social workers and was interpreted by some as changing the law by making it more difficult to convince a court to make an adoption order. The President of the Family Division clarified in the case of Re R in 2014 that his judgment in Re B-S had not intended to change the law and did NOT change the law. Re W in 2016 provided further refinement of the ‘nothing else will test’ and confirmed it is not the right test when the court has to decide between two appropriate placements.
I discuss these cases in more detail below.
Remember that Care proceedings are NOT adoption proceedings
The relevance of the 26 week timetable.
The first and very important point to make is that care proceedings are not adoption proceedings. Before a child can be adopted, The LA has to obtain a placement order. This is often applied for at the same time as a final care order.
BUT note section 22 of the Adoption and Children Act 2002 (ACA) below; the LA can apply for a placement order if a child is accommodated under section 20 of the Children Act. This does raise some legitimate concerns about ‘adoption by stealth’ which I discuss further here.
Section 21 of the ACA says the court cannot make a placement order unless:
- the child is subject to a care order OR
- the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met OR
- the child has no parent or guardian
The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:
- that the child concerned is suffering, or is likely to suffer, significant harm; and
- that the harm, or likelihood of harm, is attributable to—
- the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
- the child’s being beyond parental control.
Section 22 of the ACA sets out that a local authority must apply to the court for a placement order in respect of a child if:
- the child is placed for adoption by them or is being provided with accommodation by them,
- no adoption agency is authorised to place the child for adoption,
- the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
- the authority are satisfied that the child ought to be placed for adoption.
This a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.
So if anyone tells you simply that a social worker will take your child and have him adopted, this is not an accurate description of the necessary process.
In fact the government became so concerned by how long care proceedings were taking that section 14 of the Children and Families Act 2014 now provides that care proceedings must finish as soon as possible or in any event, take no longer than 26 weeks to conclude.
Care Proceedings may go beyond 26 weeks when this is necessary to resolve the proceedings justly. The Children And Families Act further provides at section 14(5).
A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.
See further para 49 of Re B-S:
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.
This was approved and re-stated by the President in Re S (A Child) on 16th April 2014.
Justice may not be sacrificed on the altar of speed. See further para 40 of Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons)  EWHC 270 (Fam). We have considered this case here.
It will be interesting to see how further court decisions refine this principle in the light of worries over the misinterpretion of Re B-S.
But even if the court does not give permission for care proceedings to exceed 26 weeks, that does not mean that at the end of 26 weeks, the child will be adopted. A court must made a final care order, then a placement order. This will give the LA the power to look for an adoptive placement and then the prospective adoptive parents will apply for an adoption order. The whole process is likely to take at least a year, if not more.
The link between care proceedings and adoption proceedings.
However, I believe it is clear there is a link between care and adoption proceedings; the LA must set out their plans for the children’s future in the care plans to be considered at the final hearing. So if the LA think adoption is the best option, they need to have made that decision before the final hearing so it can be confirmed by their Agency Decision Maker.
However, not everyone agrees with that position; see below for our discussion of the Adoption Leadership Board’s ‘myth busting’ guidance about the law on adoption.
Case law – what have the judges said about the need for adoption?
Lord Templeman in Re KD 1988:
The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature”
Mr Justice Hedley in Re L (Care: Threshold Criteria) (Family Division 26 October 2006)
Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. …It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.
Baroness Hale in B (Children)  UKHL 35:
20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.
21. That is why the Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it, “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate” (para 2.13).
In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33
See paragraphs 74,76,77,82,104,130,135,145,198,215. Orders contemplating non-consensual adoption are a ‘very extreme thing, a last resort, only to be made where nothing else will do, where no other course is possible in the child’s interests, they are the most extreme option, a last resort – when all else fails, to be made only in exceptional circumstances and motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will do.’
G (A Child)  EWCA Civ 965
- The crossing of the s.31 threshold does not of itself engage Art 8, but consideration of the question of what if any order should be made as a result does.
- There is a presumption that the children’s best interests are served by being with their parents wherever possible.
- Decisions that involve long term separation of a child from the family, or adoption will require a high degree of justification, be “necessary”, “nothing else will do” especially where intervention is extreme (such as adoption).
- The task of a trial judge making the ultimate determination of whether to make a care order is more than to exercise a discretion – there is an obligation to determine the application in a way that is compatible with Article 8 – and to apply the yardstick of proportionality.
- A linear approach to deciding the outcome is not appropriate – this means that it is not appropriate to evaluate and eliminate an individual option, to be left with the alternative (for example, M cannot care for the child, so a care order is the alternative). This approach leads to a bias towards the most draconian option. A global, holistic evaluation of each of the options available must be conducted.
- A global evaluation requires a balancing exercise in which each option is evaluated to a degree of detail necessary to analyse and weigh the positives and negatives of each option side by side (the risks and positives of returning to M, against the risks and positives of long term foster-care). An express choice should then be made by applying the child’s welfare as a paramount consideration.
- The court should also contemplate why any conclusion that renders permanent separation is “necessary”, on the basis that it is the “last resort” and “nothing else will do.”
- The court should also be satisfied that there is no practical way that the Local Authority (or others) can provide the requisite assistance and support required for the child to be able to remain within the family
re B-S Children  EWCA Civ 1146
The Court of Appeal considered this clear path of jurisprudence and issued stern warnings about the essential requirement in every case involving issues of non-consensual adoption, of clear analysis about all the realistic options.
The key points of the judgment can be summarised as:
- Adoption is the ‘last resort’ [para 22]
- The starting point must be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together [paras 18]
- The least interventionist approach is to be preferred [para 23]
- The child’s interests are paramount, but the court must never lost sight of the fact that these interests include being brought up by his/her natural family [para 26]
- There must be proper evidence from the LA and the Guardian that addresses all options which are realistically possible and must contain an analysis of the arguments for and against each option [para 34]
- The court then ‘must’ consider all available realistic options when coming to a decision; [para 27, 44]
- The court’s assessment of the parents’ capacity to care for the child should include consideration of what support was available to help them do so [para 28]
- The LA cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order; it is their obligation to make the court order work [para 29]
The Court of Appeal made it clear that it was ‘essential’ that a decision was made after a proper and thorough analysis of all relevant evidence. There was a real danger of not making the right decision if the court took a ‘linear’ approach to the options, i.e. rejecting option A, then moving on to option B etc. See para 44 of the judgment.
We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.”
Rowing back from ‘adoption as the last resort’?
The impact of Re B-S and how it has been interpreted caused serious concern for many. Since Re B-S there have been a number of Court of Appeal decisions that appear to want to ‘row back’ from the approach that adoption is the only permissible option when ‘nothing else will do’. See for example the case of M (A Child: Long-Term Foster Care)  EWCA Civ 1406.
Suesspiciousminds discusses these cases in his blog post and comments:
We are continuing to refine / retreat from “nothing else will do” and our soundbite test is really ending up to be quite a nuanced and long test, rather more like –
“The Court must look at each of the options for the child, consider which are remote and which are possible, and of the possible options consider whether they are contrary to the interests of the child to pursue them. If there is an option that remains that is a less interventionist order than adoption, that should be preferred.”
In CM v Blackburn with Darwen Borough Council  EWCA 1479 the mother appealed against the making of a placement order as the LA had proposed a time limited search for adoptive parents over six months, after which time, if none were found the plan would revert to long term foster care. The mother complained that this could not pass the test of adoption being ‘the last resort’ if in fact the LA were prepared to consider ‘another resort’ after only six months. The Court of Appeal dismissed the appeal. At para 33 the court commented:
Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption. What the decisions do is to explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same. A court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the ‘welfare checklist’). That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child’s welfare throughout her life: that is the court’s welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long term placement options.
That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court’s welfare analysis which leads to its value judgment. In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child. That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence.
That is what ‘nothing else will do’ means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.
For further consideration of what the law actually is in other European countries relating to adoption see the study of Dr Claire Fenton-Glynn, to the European Parliament in June 2015 Every European country permits adoption without a parental consent.
Re R  ‘Re B-S was not intended to change and has not changed the law’
The President of the Family Division confirmed on 16th December 2014 that nothing in Re B-S had been intended to change the law. He stated at para 44 of the judgment:
I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.
The fact that the law in this country permits adoption in circumstances where it would not be permitted in many European countries is neither here nor there. I do not resile from anything I said either in In reE (A Child) (Care Proceedings: European Dimension)  EWHC 6 (Fam),  1 WLR 2670,  2 FLR 151, or in Re M (A Child)  EWCA Civ 152, but for present purposes they are largely beside the point. The Adoption and Children Act 2002 permits, in the circumstances there specified, what can conveniently be referred to as non-consensual adoption. And so long as that remains the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply it. Parliamentary democracy, indeed the very rule of law itself, demands no less….
The law and practice are to be found definitively stated in two cases: the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33,  1 WLR 1911,  2 FLR 1075, and the decision of this court in In re B-S (Children) (Adoption Order: Leave to Oppose)  EWCA Civ 1146,  1 WLR 563,  1 FLR 1035….
…The fundamental principle, as explained in Re B, is, and remains, that, where there is opposition from the parent(s), the making of a care order with a plan for adoption, or of a placement order, is permissible only where, in the context of the child’s welfare, “nothing else will do”.
Further refinement of the ‘nothing else will do’ test – not appropriate when court needs to chose between two good placements.
Following Re W (A Child)  EWCA Civ 793, the court decided that the question of ‘nothing else will do’ is not apt as the starting point in cases where the court had to decide between two different households – in this case the potential adopters and grandparents who wanted an SGO. The question to be answered is what outcome will best promote F’s welfare for the rest of her life.
The court said this at para 68 about the phrase ‘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).
69. 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”.
Rare example of court refusing to make an adoption order – reliance on presumption of ‘right’ to placement with birth family that is no longer good law?
It seems that the case of A and B v Rotherham Metropolitan Borough Council  may be the first since the 2002 Adoption Act, where the court refused to make an adoption order and removed the child from the home of the potential adoptive parents – where he was settled – to live with his paternal aunt. It is clear that the court must consider the child’s welfare throughout his life – as the Judge commented here, this could mean 80 years or more.
For further discussion of this case, see suesspiciousminds.
The Judge commented at paragraph 95:
This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.
It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.
BUT – would this case have survived the analysis of the Court of Appeal in Re W (A Child)  EWCA Civ 793, which rejected the presumption in favour of placement with birth family?
The court said at paragraph 71 of the judgment
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.
Judges must not pay ‘lip service’ to the necessary analysis
A useful case is In the matter of P (a child)  EWCA Civ 3 where the Judge was criticised for not conducting the necessary analysis required of the ‘realistic’ options. At paragraph 56 the Court of Appeal commented:
While ostensibly aware of the need to adopt a ‘holistic’ approach to the evaluation of the options for P (and the guidance offered by Re B-S (Children)  EWCA Civ 1146,  1 FLR 1935 at  and at ), we are not convinced that Judge Ansell delivered on his intentions. It is, as this Court has emphasised in Re B-S and in Re R (A Child) (Adoption: Judicial Approach)  (above)) “essential” that a judge provides an adequately reasoned judgment at the conclusion of a case such as this. We very much regret that after the extensive, perhaps overly discursive, review of the evidence this judgment is light on analysis of at least one of the two realistic options (i.e. adoption) to the degree of detail necessary, nor does the judgment contain a comparison of each option or options (see McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation)  EWCA Civ 965,  1 FLR 670 at ), or a proportionality evaluation. In this respect, Mr. Horrocks makes good his submission.
There is no specially prescribed form for a judge undertaking the exercise outlined above; the judge is doing little more than performing an ‘old-fashioned welfare balancing exercise’ (Re F  EWCA Civ 882 at ); the term ‘holistic’ does not have any special meaning. Neither the parties, nor this Court, will readily conclude that a judge has performed the necessary welfare balancing exercise just because he or she acknowledges the need to do so. The debate about whether the analysis of the realistic options is a ‘balance sheet’ of the pros and cons or an aide memoire of the key welfare factors and how they match up against each other is sterile. What is expected is that the benefits and detriments of each option are considered and there is an evaluation of each option as against the other based on that analysis.
- Read an article here by a family lawyer who is worried about the implications of the 26 week timetable introduced by the Children and Families Act 2014.
- For another view, see this research from the Ministry of Justice in 2014 which suggests practitioners welcome the new approach to care proceedings.
- The President of the Family Division has recognised there is a ‘tension’ between what the courts are expecting about the way care and adoption proceedings are dealt with and government proposals relating to adoption.
- Read Sir Martin Narey’s guidance about what the law does and does not say about adoption.
The misinterpretation of Re B-S? ‘Myth busting guidance’
Sir Martin Narey has noted with concern that the impact of what he asserts is the ‘misinterpretation’ of Re B-S which has reduced the numbers of children put forward for adoption by LAs by 46%. In an attempt to dispel the ‘myths’ that have arisen about when the court may make an adoption order, the Adoption Leadership Board has published ‘myth-busting guidance’ after advice from Janet Bazley QC and consulting with the President of the Family Division.
Sir Martin Narey said:
Before commissioning the guidance, I discussed the serious drop in adoptions with Sir James Munby, president of the Family Division of the High Court who made the Re BS judgement, and I have been extremely grateful for his advice. The myth buster has been shared with him, and he supports its aim of dispelling misconceptions about the recent case law on adoption. [EDIT BUT – note the final paragraph of Re R  discussed below, where the President is very clear that this ‘myth busting’ guidance is NOT endorsed by the judiciary.]
The main myths are that:
• The legal test for adoption has changed: It hasn’t.
• To satisfy the Courts all alternative options to adoption must be considered: Not so. The evidence must address all options which are realistically possible.
• Adoption is only appropriate where nothing else will do: ‘Nothing else will do’ does not mean settling for an alternative which will not meet the child’s physical and emotional needs.
• Because it is a ‘last resort’ planning for adoption must wait until other options have been categorically ruled out. Not true. Local Authorities should plan at the earliest possible stage for the alternative of adoption where it seems possible that the child’s reunification with the family or care by other members of the family might not prove to be possible.
• The 26 week rule applies to placement orders. Since April any application for a care order or supervision order must be completed within 26 weeks but placement orders are not subject to the 26 week time limit.
The myth buster is being distributed to staff at all levels and across various disciplines in local authorities, Cafcass and the family justice system.
I urge all those involved in the adoption system to read it and reflect on how they as professionals, and their organisations, can make sure their practice and decision-making accurately reflects the judgments.
Our most vulnerable children deserve nothing less.
A number of commentators have replied to say they don’t accept that Sir Martin Narey is right to dismissal the relevance of the 26 week timetable; LA final care plans for adoption must be made before the end of the 26 weeks timetable in care proceedings, so speeding up those proceedings will inevitably impact on adoption proceedings and the type and quality of analysis that goes into the decision that adoption is the right outcome for particular child.
So. On to my real bugbear. It is disingenuous in my view to send out a message to social workers that nothing has changed, the law is the same (and implicitly you can all stop getting your knickers in a twist and go back to how things were). Because everything has changed. Not the law. Anon QC is right about that. It’s not changed. And Re B and Re B-S don’t actually set out new law, or anything we haven’t been told before. But I think that things have changed pretty radically. And generally for the better.
It is our understanding of the law that has changed – and with it our practice. The authorities that emerged like machine gun fire from the Court of Appeal in the summer and autumn of 2013 were a wake up call, a reminder that sloppy practice and poor analysis are not “good enough”. A reminder that nothing less than our best practice – as lawyers, as social workers or as judges – will do. Yes, rigour is de rigeur.
Because you know what? Before Re B and what flowed from it there was a tendency to give up on parents a little too quickly, to rule them out early on and to autopilot to a plan for adoption as the best opportunity. If we are honest the analysis of this was often poor, the challenge from lawyers and from guardians too was sometimes less robust than it should have been, and the judiciary did not always proactively probe or highlight evidential deficiencies. After all, that’s why the Court of Appeal threw their toys out of the pram in Re B-S in the first place, wasn’t it?