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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W - C (Children) [2017] EWCA Civ 250 (28 February 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/250.html Cite as: [2017] EWCA Civ 250 |
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COURT
OF APPEAL (
CIVIL
DIVISION)
ON APPEAL
FROM
BARNET
CIVIL
AND
FAMILY
COURT
(RECORDER
DIGNEY)
![]() ![]() Strand London, ![]() ![]() |
||
![]() ![]() |
B e f
o r e :
LORD JUSTICE McCOMBE
LORD JUSTICE DAVID
RICHARDS
____________________
IN THE MATTER OF: | ||
![]() ![]() ![]() ![]() ![]() |
____________________
DAR
Transcript of
WordWave
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Tel No: 020 7404 1400 Fax
No: 020 7831 8838
Official Shorthand Writers
to the
Court)
Co
Solicitors) appeared on behalf of the Applicant
Ms M Hyde (instructed by London Borough of Barnet) appeared on behalf of the Respondent
____________________
By way
of recollection, any reference to "realistic" in this area of the law
which,
unfortunately, has become bedevilled
with
headline
catchphrases,
arises in the
decision
of Re R, a
decision
of this
court,
[2014] EWCA
Civ
1625, to
which
both I and, more importantly, Sir James Munby, the President of the
Family
Division,
contributed.
Insofar as the
word
"realistic" is
concerned,
Sir James
dealt
with
this at paragraphs 58 to 62 of his judgment:
"58. The nature of that exercise has been helpfully illuminated by Ryder LJ inCM,
para 33. Put more shortly, by Ryder LJ himself, in Re Y, para 24:
'The process ofdeductive
reasoning involves the identification of
whether
there are realistic options to be
compared.
If there are, a
welfare
evaluation is required. That is an exercise
which
![]()
compares
the benefits and
detriments
of each realistic option, one against the other, by reference to the section 1(3)
welfare
![]()
factors.
The
court
identifies the option that is in the best interests of the
children
and then undertakes a proportionality evaluation to ask itself the question
whether
the interference in
family
life involved by that best interests option is justified.'.
I respectfully agree with
that, so long as it is always remembered that, in the
final
analysis, adoption is only to be ordered if the
circumstances
meet the
demanding
requirements identified by Baroness Hale in Re B, paras 198, 215.
59. I emphasise thewords
'realistically' (as used in Re B-S in the phrase 'options
which
are realistically possible') and 'realistic'' (as used by Ryder LJ in the phrase 'realistic options'). This is
fundamental.
Re B-S
does
not require the
further
![]()
forensic
pursuit of options
which,
having been properly evaluated, typically at an early stage in the proceedings,
can
legitimately be
discarded
as not being realistic. Re B-S
does
not require that every
conceivable
option on the spectrum that runs between 'no order' and 'adoption' has to be
canvassed
and bottomed out
with
reasons in the evidence and judgment in every single
case.
![]()
Full
![]()
consideration
is required only
with
respect to those options
which
are 'realistically possible'.
60. As Pauffley J said in Re LRP (AChild)
(
Care
Proceedings: Placement Order) [2013 EWHC 3974 (
Fam),
para 40, 'the
focus
should be upon the sensible and practical possibilities rather than every potential outcome, however
far-fetched.'
And, to the same effect, Baker J in Re HA (A
Child)
[2013 EWHC 3634 (
Fam),
para 28:
'rigorous analysis andcomparison
of the realistic options
for
the
child's
![]()
future
...
does
not require a
court
in every
case
to set out in tabular
format
the arguments
for
and against every
conceivable
option. Such a
course
![]()
would
tend to obscure, rather than enlighten, the reasoning process.'.
'nothing else will
do'
does
not mean that 'everything else' has to be
considered.
61.What
is meant by 'realistic'? I agree
with
![]()
what
Ryder LJ said in Re Y, para 28:
'Realistic is an ordinary Englishword.
It needs no
definition
or analysis to be applied to the identification of options in a
case.'.
62. In many, indeed probably in most,cases
there
will
be only a relatively small number of realistic options. Occasionally, though probably only in
comparatively
rare
cases,
there
will
be only one realistic option. In that event, of
course,
there
will
be no need
for
the more elaborate processes
demanded
by Re B-S and
CM:
see Re S (A
Child)
[2013] EWCA
Civ
1835, paras 45-46, and Re Y, paras 23, 25. The task
for
the
court
in such a
case
![]()
will
simply be to satisfy itself that the one realistic option is indeed in the
child's
best interests and that the parent's
consent
![]()
can
properly be
dispensed
![]()
with
in accordance
with
section 52(1)(b) of the 2002 Act, as explained in Re P (Placement Orders: Parental
Consent)
[2008] EWCA
Civ
535, [2008 2
FLR
625."
I would
stress two aspects of
what
is said there.
Firstly,
at paragraph 59 Sir James identifies that the issue of
what
is or
what
is not a "realistic" option should have been "properly evaluated, typically at an early stage in the proceedings". Secondly, at paragraph 62
where
he advises that it
will
only be occasionally that the
court
is left
with
just one "realistic" option to
consider,
and this
will
arise in "
comparatively
rare
cases".
"I have todecide
on
which
side of Mr Justice Hedley's
divide
the
case
![]()
falls
and I have to
decide
if the balance is tipped here. I
would
also refer to a later passage in that
case,
![]()
where
Lady Hale says
what
a judge must
do
in a
case
of this sort is to spell out
what
the
feared
harm
was;
![]()
whether
it
was
significant, and how likely it
was
to happen."
"Thefirst
thing I have to
do
is to
conclude
![]()
whether
leaving the
children
![]()
with
the mother is a realistic option, because
what
I have to
do
is
weigh
up the realistic options."
and he then goes on to rehearse various matters. Sadly for
the mother, these are
well
established by the judge on the evidence and led to him ruling her out, but he rules her out at paragraph 42 in these terms:
"It isclear
![]()
from
the evidence that remaining
with
the mother is not an option."
and at paragraph 43:
"Even if [C]
![]()
were
removed, and just looking after [
D]
![]()
were
all that
was
to happen, that
would
not be an option".
Well,
for
my part I
would
flag
up that the approach taken by the judge to this issue
was
not in line
with
the authorities. The question of
whether
or not an option
was
realistic,
for
example placement
with
one of the
fathers
in this
case,
should have been
considered
at an early
directions
hearing and taken off the
court's
agenda if it
was
not a "realistic option". Once the
final
hearing started and the judge immersed himself in the
detail
of the issue of
whether
or not one or both of these
children
could
stay
with
their mother or go to another placement - either special guardianship, long-term
fostering
or adoption - the question of
whether
one option or another
was
"realistic"
was
irrelevant. There
was
a need at that stage
for
an ordinary
full
welfare
evaluation of the options that
were
before the
court.
"It is verydifficult
to settle into adoption
when
there is
contact
![]()
with
siblings. It is
difficult
to
find
adopters
who
are happy
with
sibling
contact
and, even if adopters say they
will
agree to that in advance, it is
difficult
to know how they
will
![]()
feel
![]()
when
it
comes
to it. He sees problems
when
the
child
gets older, as to identity, and particularly at puberty. He sees a real
confusion
as to
who
they are and a real
dysfunction.
There
will
be more problems
with
this solution (that is adoption) than
with
![]()
foster
![]()
care."
Earlier, the judge at paragraph 15 had summarised the social worker's
response to that in these terms:
"Shewas
asked about the Guardian's views that long-term
fostering
![]()
was
more appropriate
for
[
D],
and she said it is something that they
would
not
consider
![]()
for
a
child
of [
D]'s
age. She
would
be a looked after
child
![]()
for
17 years and she needs a legally secured placement. They
would
seek adopters
who
![]()
would
accept sibling
contact
but not
direct
![]()
contact
![]()
with
the mother".
"Herewe
![]()
come
to the area
where
there is
dispute
between the Guardian and the local authority as to
what
should happen to [
D].
The local authority think that she should be adopted. The Guardian thinks that there should be long-term
fostering.
This
disagreement
in a sense turns on almost a matter of principle. The local authority's view is based on the
fact
that there should be
certainty
and permanency at the earliest possible stage,
whereas
the Guardian's view is that sibling
contact
overrides the need
for
![]()
certainty
and permanency. It may be that in ten years' time the question
will
be answered
differently.
It is
clear
that even over the last
few
years
far
more
weight
is given to sibling
contact
than it
was
a not very long time ago. But it seems to me the
weight
of judicial thinking, as at the moment, is that permanency and
certainty
outweigh the need
for
sibling
contact,
but it
does
seem to me that sibling
contact
is particularly important."
A number of points need to be made about this paragraph. First
of all, the judge at no stage in his judgment makes any reference to any law
which
may or may not help him on this issue. He had been referred to the
case
of LRP [2013] EWHC 3974, a
decision
of Pauffley J,
dealing
with
a ten-
week
old
child
where
that judge in round terms held that such a long-term
foster
placement
would
not be appropriate. He had not, unfortunately in my view, been referred to the
decision
of this
court
in Re V (Long-term
fostering
or adoption) [2013] EWCA
Civ
913,
where
Black LJ at paragraph
96 sets out a list of some of the factors,
one
way
or the other,
which
mark the
distinction
between long-term
fostering
and adoption.
"I turn to thewelfare
![]()
checklists.
![]()
With
regard to the ascertainable
wishes
and
feelings
of the
child
![]()
concerned,
[
D]
probably
does
not have any stated views as at the moment, but [
C]
![]()
certainly
![]()
does
and [
C]
![]()
would
![]()
certainly
![]()
wish
to remain
with
her mother. I have made it
clear
![]()
where
my views are
with
regard to physical, emotional and educational needs. As I say, I bear in mind that I am now thinking about the realistic options. As regards [
D],
as I say, my preferred, although hesitant, option is adoption
with
![]()
contact.
[
D]'s
physical, emiotional and educational needs
can
be properly looked after in an adoption placement and [
C]'s
![]()
can
be looked after under a special guardianship. I turn to the likely effect of any
change
of
circumstances.
The
children
are still
with
their mother and I
do
not
doubt
that in the short term there
will
be upset.
With
regard to age, sex, background and any other relevant
characteristics,
I think that [
D]'s
age means that adoption is something that is likely to
work
very
well.
I
do
not think that adoption at her age
would
be a very good thing as
far
as [
C]
is
concerned.
As I say, that is still the local authority's view, that they should be adopted together. I think adoption
for
her at this stage, she is at an age
where
the success rate is going
down,
and the same argument applies to any harm
which
she has suffered or is at risk of suffering. I think that adoption
for
[
C]
at this stage
would
be harmful.
Cutting
her off
completely
![]()
from
her
family
![]()
would
be harmful.
With
regard to how
capable
each of the parents and any other person in relation to
whom
the
court
![]()
considers
the question to be relevant, is of meeting the relevant needs, obviously the potential adopter is as
far
as [
D]
is
concerned.
The special guardian is as
far
as [
C]
is
concerned.
In this
case
the range of powers available to the
court
is significant because I have already said that I have been told that I
can
![]()
certainly
make a sibling
contact
order as at the moment, and the judge
who
![]()
deals
![]()
with
the adoption of [
D]
![]()
when
that happens
can
![]()
do
that as
far
as that is
concerned."
Again, I am afraid the Recorder's approach is one which
calls
for
criticism.
First
of all, the Recorder refers to "
welfare
checklists"
in the plural, and plainly in this paragraph is
focusing
on the
welfare
checklist
in the
Children
Act 1989, section 1(3). I have in the judgment as it happens that I gave in Re R to
which
I have already referred, at paragraph 20, in the past made the observation that in a
case
such as this
where
the issue is a
choice
between adoption and some other
form
of long-term
care
a
child
is to have, the 1989 Act
checklist
is not relevant:
"Although itdoes
not affect the substance of his evaluation in the present
case,
I
would,
however, question the judge's
decision
to analyse the issues in the
case
![]()
first
under the
welfare
![]()
checklist
in
CA
1989, prior to making a
care
order endorsing the
care
plan
for
adoption, and before moving on to
conduct
a second analysis using the
welfare
![]()
checklist
in ACA 2002. There
was
one issue in this
case:
should the
child
be returned to the mother or go
forward
![]()
for
adoption. That is an adoption question to
which
the
factors
in the 2002 Act
directly
apply. In the
circumstances
it
was
necessary, and necessary only, to analyse
which
outcome
was
to be
chosen,
by giving the
child's
![]()
welfare
paramount
consideration
throughout her lifetime through the lens of the
welfare
![]()
checklist
in ACA 2002, s 1(4). There
was
no need to
conduct
a preliminary, lower level, analysis using the
CA
1989
checklist
or to make a
care
order in the middle of the judgment; if the adoption plan
was
ultimately
chosen
then a
care
order
would
readily be justified and made at the
conclusion
of the hearing."
Not only does
the judge use the 1989 Act
checklist
as his entry into the
case,
he has in my view not assisted his analysis by using the
welfare
checklist
structure to make points about each of these two very
different
children
in the
course
of single sentences.
Consequently,
so
far
as ascertainable
wishes
and
feelings
are
concerned,
he simply says, "
D
probably
does
not have any stated views at the moment". That no
doubt
is right, but to hold that that
deals
with
the entirety of that topic in the
welfare
checklist
is
certainly
questionable.
Whether
or not
D
can
say anything about her
wishes
at the moment
does
not mean that she lacks "
feelings"
about the
choices
that have to be made. There
was
a necessity in my view to look at
what
attachments
D
had at that stage to her mother, but also to her sibling, in order to
form
a view as to
what
her ascertainable "
feelings"
might be. Given her age they may or may not hold sway, but they needed to be part of the picture in the
case.
"It is submitted that the Recorder's analysiswas
beyond linear, the exercise
was
performed in reverse: He posited his preferred option and then justified it
with
reference to selected parts of the
welfare
![]()
checklist
rather than performing anything
close
to a
full
analysis of each option".
Sadly, I agree that Miss Briggs is entirely right in that submission.
"Byfailing
to address the
welfare
![]()
checklists
and
failing
to balance all the relevant
considerations,
the Recorder
fell
into error by
characterising
the
case
as one of 'permanency vs sibling
contact'
and attempting to
find
his own resolution to the
conundrum
by making a
contact
order,
which
![]()
does
not in
fact
resolve the problem."
Again, unfortunately, I believe that Miss Briggs has correctly
identified a
central
fault
in the Recorder's analysis.
"I also have toconsider
s.1 of the Adoption and
Children
Act. The paramount
consideration
of the
court
must be the
child's
![]()
welfare
throughout his life. I think that [
C],
given her age, is likely to be a much happier person if she remains
with
the special guardian and I think happiness leads towards
wellbeing.
![]()
With
regard to [
D],
on the other hand, given her age, her
welfare
is likely to be better if she is adopted. That brings me to see the likely effect on the
child
of having
ceased
to be a member of the original
family
and become an adopted person. Of
course
that
will
not apply to [
C],
but as
far
as [
D]
is
concerned,
she
will
have become an adopted person but I hope that the sibling
contact
that she
will
have
will
mean that the harm of
ceasing
to be a member of the original
family
is mitigated to a
considerable
extent. 'The relationship
which
the
child
has
with
relatives and
with
any other person in relation to
whom
the
court
or agency
considers
the relationship to be relevant'. That again
will
be
covered,
as
far
as [
D]
is
concerned,
by sibling
contact
and the same applies to the likelihood of such relationship
continuing
and the value. Sibling
contact,
as I say, seems to me particularly valuable."
The fact
that the Recorder indicates that he "also" has to
consider
section 1 of the Adoption and
Children
Act is a matter to
which
I have already made reference. To
do
so after he has announced his
decision
with
respect to adoption is
clearly
of
concern.
"Looking at all these matters andweighing
up the two realistic alternatives, namely that [
D]
is adopted and [
C]
is placed under a special guardianship order
with
Ms.[H], or that [
D]
and [
C]
are adopted together, it seems to me that the better of those two options and, as I have pointed out, the local authority thought it
was
the better option
when
they thought the special guardianship
was
a proper
course,
is special guardianship
for
[C]
and adoption
for
[
D].
I
would
add that that
was,
![]()
when
special guardianship
was
thought appropriate, that
was
the preferred view of all the professionals in this
case."
Here, the judge purports to look at "the two realistic alternatives". But in relation to both of the alternatives that he considers,
D
is adopted. Long-term
fostering
for
D
is again simply not mentioned. The only oscillating element of the alternatives is
whether
C
is
with
D
in the adoptive placement or placed
with
her aunt.
"The only other thing I have to say is that Idispense
![]()
with
the parents'
consent
to adoption because I
conclude
that it is in [
D]'s
best interests".
As is well
known, the test
for
dispensing
with
parental
consent
is not that
which
is stated by the judge in that paragraph. The test in the Adoption and
Children
Act 2002, section 52(1)(b) is that:
"(1) Thecourt
![]()
cannot
![]()
dispense
![]()
with
the
consent
of any parent or guardian of a
child
to the
child
being placed
for
adoption or to the making of an adoption order in respect of the
child
unless the
court
is satisfied that -
[...]
(b) thewelfare
of the
child
requires the
consent
to be
dispensed
![]()
with."
The authority which
is at least required reading, if not
citation,
on this point is the
decision
of this
court
in Re P [2008] EWCA
Civ
355, in
which
in the
course
of a number of paragraphs,
Wall
LJ sets out the approach to be taken to applying the
word
"requires" to these
difficult
decisions.
In short, the
court
has to
decide
whether
the
child's
welfare
requires adoption or something short of adoption.
"Thecourt
![]()
did
not balance the benefits and
detriments
of LTF vs adoption
for
[
D],
nor
was
there any reference to the least
draconian
order principle or proportionality. If the
court
accepts that this is an omission
can
the judgment be amplified."
and below that:
"Reply: Itwas
made
clear
in the judgement that as adoption
was
being
considered
the Local Authority had to show that nothing else
would
![]()
do"
Well,
it is
correct
that in the short paragraph on the law at the start of the judgment, the judge
does
indeed refer to the need
for
the local authority to establish that "nothing else
will
do".