Tag Archives: proportionality

When can the court agree adoption is necessary?

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) [2014] 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) [2008] 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) [2013] 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) [2013] 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 [2013] 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) [2014] 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 [2014] 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 [2014] ‘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) [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, or in Re M (A Child) [2014] 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) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and the decision of this court in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 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”.

For further comment on this case and how it has been misreported in the media, see Pink Tape. See the statement by the British Association of Adoption and Fosterting. 

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) [2016] 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 [2013] EWCA Civ 1146, Re R [2014] 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 [2014] 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) [2016] 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) [2016] 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) [2013] EWCA Civ 1146, [2014] 1 FLR 1935 at [36] and at [46]), 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) [2014] (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) [2013] EWCA Civ 965, [2014] 1 FLR 670 at [54]), 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 [2015] EWCA Civ 882 at [48]); 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.

Further reading

  • 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 [2014] 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.

Pink Tape comments:

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?

 

Proportionality and Article 8 of the ECHR

What does this mean? And why is it important?

to protect individuals against arbitrary interference by public authorities

 

The European Convention and the Human Rights Act 1998

‘Proportionality’ is the key concept to understanding how family law operates.  This comes from Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

The Convention is protected by the European Court of Human Rights, which was established in 1959. For a useful introduction to the ECHR see this infographic from Rights Info which discusses the basic structure of the European Court, who it protects and why it matters. For further information and discussion about the scope of Article 8, see the ECHR on-line site. You can get the form to make an application to the European Court and read the guide on how to make the application. 

Prior to the implementation of the  Human Rights Act 1998  (HRA), if you were complaining about a breach of the ECHR, you had to apply directly to the European Court in Strasbourg. Now, the HRA allows the ECHR to take ‘direct effect’ in domestic legislation.

Section 6 of the HRA and makes it clear that ‘public authorities’ – which includes local authorities who want to make applications for care orders – cannot act in a way which is incompatible with the ECHR, unless they are following statute law which they can’t interpret in a way to make it compatible.

If a Judge agrees that statute law is incompatible with the ECHR, he or she can make a ‘declaration of incompatibility’ which means the Government will have to think seriously about amending that statute.

For useful discussion about how Parliament in the UK and the European Court interact, see this discussion from the House of Commons Library blog about parliamentary sovereignty and the European Convention.  

There has been much recent debate about whether or not the UK should keep the Human Rights Act; the perception of some is that we are subject to excessive interference from Europe in the way we want to manage our country. The fears of excessive interference are not reflected by the number of times the UK has been subject to criticism in the European Court of Human Rights. The House of Commons blog says:

Since the Court of Human Rights was established in 1959, it has delivered around 17,000 judgments. Nearly half of these concerned five Member States (Turkey, Italy, the Russian Federation, Poland and Romania) … from 1959 to 2013, (and in purely numerical terms) the UK was responsible for 2.96% of the total violations found by the court (compared to Turkey who has been the worst offender, responsible for 17.75%).

A note of caution – disappearance of ‘human rights’ from the ‘Working Together’ guidance.

‘Working Together to Safeguard Children’ is very important government guidance for all professionals in this field. It was first published in 1999. The 2010 edition contained useful and explicit mention of human rights and reminded professionals that data protection principles often engaged individual human rights.

However, some commentators have noted with concern that the most recent edition of the guidance contains only one reference to ‘data protection’ and no reference whatsoever to ‘human rights’. There is legitimate concern that the boundary is becoming blurred between children who are ‘in need’ and require help and children who are ‘at risk’ and require protection and the ‘air brushing’ out of any reference to human rights in the guidance is thus regrettable.

As Allan Norman comments:

If social workers stop caring about human rights, isn’t that like doctors stopping caring about health or lawyers about justice?

Article 8 – Right to respect for private and family life

The two most frequently encountered Articles of the ECHR in care proceedings are Article 6 – the right to a fair trial – and Article 8. There is clearly some overlap between the two – if your right to a fair trial is compromised in care proceedings, this may have implications for your family life.

Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Therefore, we can see that Article 8 rights are not ‘absolute’ but can be over ruled when:

  • it is lawful to do so;
  • it is necessary to do so, for example, to protect health or morals.

 

The ambit of Article 8 rights

In Pretty v UK (2002) 35 EHRR 1 at paragraph 61 the ECtHR made the following comment about the ambit of Article 8:

As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established any such right to self determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.

With regard to the ambit of ‘family life’ Article 8 covers:

Article 8 ECHR provides that everyone has the right to respect for family life. The European Court of Human Rights interprets the term ‘family life’ autonomously. Forms of cohabitation or personal relationships which are not recognized as falling in the ambit of ‘family life’ in the jurisdiction of a contracting state can still enjoy protection by article 8; family life is not confined to legally acknowledged relationships. The Court is led by social, emotional and biological factors rather than legal considerations when assessing whether a relationship is to be considered as ‘family life’.

How do we decide if Article 8 rights should be over-ruled in a particular case?

This is where proportionality comes into play. It cannot be ‘necessary’ to breach someone’s rights if they way you propose to breach them is well in excess of what is needed to prevent harmful consequences.

For example, in some cases, there are worries that a parent is finding it hard to cope at home and this is having a bad impact on the children. The LA are considering care proceedings, but family and friends offer to help. In those circumstances it probably would not be ‘proportionate’ to demand that this parent give up his or her children for adoption or even  have the children go to live with foster carers for a short time.

A more proportionate response would be for everyone to meet and discuss what they could do to keep the children safe at home.

However, if a child is seriously injured at home and his parents can’t or won’t say what happened, then it probably will be proportionate to remove the child immediately from his parents’ care. 

See our post on interim removals and emergency protection orders.

The issue of proportionality was discussed by the Supreme Court in Re B in 2013 when considering an appeal against the trial judge’s decision that it was proportionate to remove a child for adoption.

115. Into all of this discussion, however, must come the question of proportionality. Significantly different considerations are in play when the proportionality of the decision is in issue. A decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary. That question cannot be answered by saying that someone else with whose judgment I am reluctant to interfere, or whose judgment can be defended, has decided that it is necessary. It requires the decision-maker, at whatever level the decision is made, to starkly confront the question, “is this necessary”. If an appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons that the first instance court believed it to be so, or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate.

For an example of a case where the Court of Appeal thought removing children was not a proportionate response, see K (Children) [2014].

 

Is the Children Act 1989 compatible with Article 8 of the ECHR?

Short answer – yes. For a recent example of when the UK was challenged by Latvia over the legitimacy of its care proceedings, see this post. 

When the Human Rights Act came into force, there was a lot of interest in testing the Children Act 1989 to see if it was compatible with the ECHR.

One challenge was to the fact that once  a care order is made, it is up to the LA to decide how to make it work and the court does not have any power to interfere with those decisions. The House of Lords (as they were then called; they are now the Supreme Court) considered whether or not this was compatible with Article 8 in the case of In re S [2002] UKHL 10. The lawyers argued that the court should continue to oversee what the LA was doing by way of ‘starred care plans’ – which identified issues in the care plan which should be kept under review and brought back to court if necessary.

The House of Lords rejected that argument and held that introducing this new supervisory role for the courts would go far beyond simply ‘interpreting’ the Children Act; it would be introducing a new role for the courts and only Parliament had the power to do that. To entrust a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8.

53. The essential purpose of this article is to protect individuals against arbitrary interference by public authorities. In addition to this negative obligation there are positive obligations inherent in an effective concept of ‘respect’ for family life: see Marckx v Belgium (1979) 2 EHRR 330, 342, paragraph 31. In both contexts a fair balance has to be struck between the competing interests of the individual and the community as a whole: see Hokkanen v Finland (1994) 19 EHRR 139, 168-169, paragraph 55.

54. Clearly, if matters go seriously awry, the manner in which a local authority discharges its parental responsibilities to a child in its care may violate the rights of the child or his parents under this article. The local authority’s intervention in the life of the child, justified at the outset when the care order was made, may cease to be justifiable under article 8(2). Sedley LJ pointed out that a care order from which no good is coming cannot sensibly be said to be pursuing a legitimate aim. A care order which keeps a child away from his family for purposes which, as time goes by, are not being realised will sooner or later become a disproportionate interference with the child’s primary article 8 rights: see paragraph 45 of his judgment.

55. Further, the local authority’s decision making process must be conducted fairly and so as to afford due respect to the interests protected by article 8. For instance, the parents should be involved to a degree which is sufficient to provide adequate protection for their interests: W v United Kingdom (1987) 10 EHRR 29, 49-50, paragraphs 62-64.

56. However, the possibility that something may go wrong with the local authority’s discharge of its parental responsibilities or its decision making processes, and that this would be a violation of article 8 so far as the child or parent is concerned, does not mean that the legislation itself is incompatible, or inconsistent, with article 8. The Children Act imposes on a local authority looking after a child the duty to safeguard and promote the child’s welfare. Before making any decision with respect to such a child the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child and his parents: section 22. Section 26 provides for periodic case reviews by the authority, including obtaining the views of parents and children. One of the required reviews is that every six months the local authority must actively consider whether it should apply to the court for a discharge of the care order: see the Review of Children’s Cases Regulations 1991 (SI 1991 No. 895). Every local authority must also establish a procedure for considering representations, including complaints, made to it by any child who is being looked after by it, or by his parents, about the discharge by the authority of its parental responsibilities for the child.

57. If an authority duly carries out these statutory duties, in the ordinary course there should be no question of infringement by the local authority of the article 8 rights of the child or his parents. Questions of infringement are only likely to arise if a local authority fails properly to discharge its statutory responsibilities. Infringement which then occurs is not brought about, in any meaningful sense, by the Children Act. Quite the reverse. Far from the infringement being compelled, or even countenanced, by the provisions of the Children Act, the infringement flows from the local authority’s failure to comply with its obligations under the Act. True, it is the Children Act which entrusts responsibility for the child’s care to the local authority. But that is not inconsistent with article 8. Local authorities are responsible public authorities, with considerable experience in this field. Entrusting a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8. There is no suggestion in the Strasbourg jurisprudence that absence of court supervision of a local authority’s discharge of its parental responsibilities is itself an infringement of article 8.

Reforms following this decision

However, although the House of Lords rejected the idea of ‘starred care plans’, they were troubled by the absence of any identified individual who would oversee and intervene if a LA were not offering good enough care to children after the court hearing was over. This could be particularly serious if a child had no parent who was willing or able to make complaints on their behalf and could lead to an infringement of the child’s human rights.

Lord Nicholls said at paragraph 106:

I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal’s initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities’ discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in the present case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.

The Independent Reviewing Officer

The Government responded with Section 118 of the Adoption and Children Act 2002 which amended section 26 of the Children Act 1989 and established the role of Independent Reviewing Officer (IRO).

The job of the IRO is to improve outcomes for looked after children by reviewing each child’s care plan and ensure that the child’s wishes and feelings are considered. They must:

  • monitor the local authority’s performance of their functions in relation to the child’s case
  • participate in any review of the child’s case
  • ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the appropriate authority
  • perform any other function which is prescribed in regulations.
  • promote the voice of the child
  • ensure that plans for looked after children are based on a detailed and informed assessment, are up-to-date, effective and provide a real and genuine response to each child’s needs
  • identify any gaps in the assessment process or provision of service
  • making sure that the child understands how an advocate could help and his/her entitlement to one
  • offer a safeguard to prevent any ‘drift’ in care planning for looked after children and the delivery of services to them
  • monitor the activity of the responsible authority as a corporate parent in ensuring that care plans have given proper consideration and weight to the child’s wishes and feelings and that, where appropriate, the child fully understands the implications of any changes made to his/her care plan.

See our post about the role of the Independent Reviewing Officer for more information. 

 

Further reading/listening

June 2016 – Podcast from barrister David Bedingfield of 4 Paper Buildings ‘Proportionality and Public Law Children Cases’. 

 

 

 

 

 

 

 

Care and Supervision Orders

Care and Supervision orders were created by Part IV of the Children Act 1989.

See Chapter 3 of the Guidance from the Department of Eduction.

On the application of the LA or the NSPCC the court can consider making either order if the provisions of section 31 are made out. This requires the judge to be satisfied that a child has suffered or is at risk of significant harm.

The significant harm can occur because of bad parenting (which is likely to be seen as the parents’ ‘fault’) or because the child is beyond parental control – this may be less likely to be seen as the ‘fault’ of the parents. But regardless of questions of who or what is to ‘blame’ – there must be a link between the parenting/lack of control and the significant harm.

In this post, we examine the legal consequences that flow from the making of either a care or a supervision order.

If you are worried that your child is going to be taken away at an ‘interim hearing’ i.e. before the final care order is made, read more about this here.

 

Care and Supervision Orders – some general points

  • No care or supervision order can be made once child is 17 years old (or sixteen if married!)
  • If the LA want a care order the court can decide to make a supervision order or no order at all. This is due to the principle of ‘least intervention’; the court must be careful that the decisions it makes are proportionate to the harm in question. Proportionality is a key concept in Family Law – see Article 8 of the ECHR. If the child could be kept safe by a less serious order, such as a supervision order or child arrangements order, then that is the order that should be made. See further our post about Article 8 and proportionality.
  • A care order gives the LA parental responsibility for a child; a supervision order does not. See discussion below.
  • If a care order is made, if the child is subject to any other orders – such as any order under section 8 of the Children Act 1989, a supervision order, education supervision order or school attendance order – those orders will be discharged. Also if the child was a ward of court, the care order will bring wardship to an end.
  • If the child is subject to a care order and the court makes a special guardianship order or a child arrangements order under section 8 of the Children Act 1989, dealing with the living arrangements of a child, that will bring the care order to an end. If the court makes a placement order, the care order is suspended not discharged and will revive if the placement order is revoked.

Care Plans

Under section 31A of the Children Act 1989 the court cannot make a care order unless the LA have provided a care plan for the child. Section 15 of the Children and Families Act 2014 has amended the law with regard to care plans to say that the court need only  examine that part of the plan which relates to permanency for the child – i.e. what the LA thinks should happen to the child in the future and where he or she should live.

 

Consequences of a care order

Impact on parental responsibility

What is parental responsibility?

Parental responsibility (‘PR’) is defined under section 3 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority, which by law a parent has in relation to the child and his/her property.”

In a nutshell this means that people with PR have a right to know and make decisions about serious issues in the child’s life, such as where they live or go to school or what medical treatment they need.

Mothers automatically have PR for their children; fathers will have it automatically if they are married to the mother or – from 2003 – if their name appears on the birth certificate. If the parents were not married, the father is not on the birth certificate and the parents cannot agree about PR, the father will need to apply to the court for an order awarding him PR.

The key distinction between care and supervision orders is found under section 33(3) of the Children Act. Only a care order can gives the LA parental responsibility and the power to decide how any one else can exercise their parental responsibility. It is often said that a care order allows the LA to ‘share’ parental responsibility but the more realistic description is that the LA is now in the driving seat when it comes to making decisions about the child. 

 

The LA can control parents’ exercise of their parental responsibility when ‘necessary’.

However, under section 33(4) the LA can only use their powers to control other people’s parental responsibility if to do so is necessary to safeguard or promote the child’s welfare. Together with the considerations of Article 8 of the ECHR and the need to act proportionally, the LA will need to think seriously about whether or not what it proposes is ‘necessary’.

For example, see our post on what happened when the LA wanted to remove a child who was placed at home under a care order. The court decided that this had not been ‘necessary’ and that the first judge had the power to stop them by way of an injunction under the Human Rights Act 1998.

Further, under section 33(6) the LA is NOT entitled to change the child’s religious persuasion and NO ONE is allowed to call the child by a different surname or take him out of the country for more than a month unless everyone with parental responsibility agrees or the court orders.

 

Duty to consult

It is important to note that, even though under a care order the LA is in the ‘driving seat’, they cannot ignore the other passengers – the LA MUST consult with and inform other PR holders about important decisions they make for the child and they have rightly been subject to serious criticism when they have failed to do this.

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents.

The Judge made clear at paragraph 58 his views about the duty to consult:

I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard.

Paragraph 1.5 provides (inter alia):
“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” …

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”
Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court.

The issue about how the LA needs to consult will depend on the facts of each case, but should usually include the parents and the guardian, if one is appointed and any other family member who has a close link to the children, such as a grandparent who may be caring for the child or otherwise closely concerned.

The LA will then have to decide how much weight to attach to the input of those it consults and again, this will depend on the facts of each case.  But the Judge was clear:

The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.

I don’t agree with what the LA wants to do

If, after consultation, you do not agree with the LA’s proposed plan of action, you may need to consider applying for an injunction to prevent them from acting under the Human Rights Act. We discuss this remedy here.

 

Impact of care order on contact with children

There is a helpful article from Family Law which discusses applications for contact with a child in care. See also the Care Planning, Placement and Case Review Regulations 2010.

Section 34 states that the LA ‘shall’ allow the child ‘reasonable contact’ with his parents or guardian, a step-parent who has parental responsibility or anyone who had a residence order immediately before the care order was made. Any other person who wants contact will have to apply to the court for leave to make an application and the court may make ‘such an order as it considers appropriate’.

Contact with babies in care proceedings

It used to be thought that when babies were taken into care, that parents ought to have as much contact as possible, and 5 times a week would represent a minimum. However, more recently,  the courts have become aware of research which showed that frequent contact for babies in care was often harmful to  them as it could mean that they were subject to a lot of travelling with unfamiliar people and it had a negative impact on their ability to settle in foster placements. So it is likely that contact with a baby will be set at between 2-3 times a week and probably less for older children as they are likely to have a number of commitments such as school attendance which may impact upon frequent contact.

If you want to know more about the issue of contact with babies in care, here is a transcript of a debate on 8th December 2010, organised by the Family Justice Council ,which includes contributions from the President of the Family Division. There is a useful article here from Jenny Kenrick, a child psychotherapist, which looks  further at the practical issues around contact with babies in care proceedings.

The LA want to stop contact

The LA cannot refuse contact unless for an urgent reason and then only for 7 days. If the LA wants to stop contact and you don’t agree,  it will have to ask the court to order this under section 34(4).

If the LA do want to stop your contact, then under Regulation 8 of the Care Planning, Placement and Case Review Regulations of 2010, they must give written notice of:

(a) the responsible authority’s decision,
(b) the date of the decision,
(c) the reasons for the decision,
(d) the duration of the decision (if applicable), and
(e )remedies available in case of dissatisfaction.

 

Supervision Orders

You will find supervision orders at section 35 of the Children Act 1989.

A supervision order does NOT give the LA parental responsibility for your child but allows them to appoint a ‘supervisor’ who will ‘advise, assist and befriend the supervised child’ and take whatever steps are necessary to make the supervision order work. 

Supervision orders are normally made for six months or 12 months at time. They can be a good way of dealing with concerns which are worrying but not so serious that a care order is required. It is a way of keeping an eye on a situation and monitoring how well things are going.

The court can make a supervision order even if the LA is asking for a care order, if the court thinks a supervision order is the best order to make.