Re B-S (Children)
[2013] EWCA Civ 1146
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
An application under section 47(5) of the Adoption and Children Act 2002 for leave to oppose an adoption order involves a two-stage process: has there been a change in circumstances, and if so should leave be given - the second stage being a judicial evaluation, not a mere discretion, in which the child's welfare is paramount but the court must remember that adoption is the last resort, permissible only where nothing else will do. Whenever non-consensual adoption is contemplated two things are essential: proper evidence from the local authority and the guardian addressing all the realistically possible options with an analysis of the arguments for and against each, and an adequately reasoned judgment containing a global, holistic evaluation of those options.
Facts
The mother's two children, born in 2007 and 2008, were removed from her care in February 2011 and made the subject of care and placement orders in October 2011; they were placed with prospective adopters in April 2012. When the adoption applications came before Parker J in May 2013 the mother, relying on what McFarlane LJ described as an astonishing change of circumstances, applied under section 47(5) of the 2002 Act for leave to oppose the making of adoption orders. Parker J refused leave and made adoption orders, and the mother appealed with permission from McFarlane LJ so that the Re W test for such applications could be audited in the light of the Supreme Court's decision in Re B [2013] UKSC 33.
Judgment Summary
The Court of Appeal (Lord Dyson MR, Sir James Munby P and Black LJ) dismissed the appeal, holding that Parker J had not been wrong to refuse leave. Giving the judgment of the court, Sir James Munby P restated the two-stage approach to section 47(5), approving Re P subject only to recasting the second stage as one of judicial evaluation rather than mere discretion, and warned that unthinking reliance on the concept of the exceptionally rare derived from Re W risked rendering section 47(5) nugatory and its protections illusory. Prompted by the Supreme Court's forceful reminder in Re B that non-consensual adoption is a very extreme thing, a last resort to be ordered only where nothing else will do, the court expressed real concerns about the recurrent inadequacy of the analysis and reasoning put forward in support of adoption, declared that this sloppy practice must stop, and spelt out the two essentials: evidence addressing all the realistic options with the arguments for and against each, and a global, holistic evaluation of the child's welfare taking into account all the pros and cons of each option.
Key Quotes
"Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”"
— Sir James Munby P, giving the judgment of the court, at para 22(verbatim, verified against the judgment)
"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."
— Sir James Munby P, giving the judgment of the court, at para 44(verbatim, verified against the judgment)
Subsequent Treatment
In Re R (A Child) [2014] EWCA Civ 1625 Sir James Munby P emphasised that Re B-S did not change the law: it demands proper evidence and a rigorous analysis of the realistic options, not a heightened substantive test for adoption.
The requirement of a 'Re B-S-compliant' analysis - evidence addressing all realistic options with the arguments for and against each, and a global, holistic evaluation in the judgment - remains the governing practice standard in placement and adoption cases.
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