The case of Re B (A Child) [2013] UKSC 33 discussed in our previous blog:
In this case the Supreme Court stated that adoption is the ‘last resort’ and only permissible if ‘nothing else will do’. It also stressed that the child’s welfare is paramount and that the child’s interests include being brought up by the parents and wider family unless the overriding requirements of the child’s welfare is such that it is not possible.
The case of D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948
In this legal blog, we discuss the case of:
D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948 (August 2024)
https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/948
Facts of the case
The parents of C have learning difficulties.
The mother has two older children, K (aged 10) and J (aged 5), both children have different fathers.
K and J were previously subject to proceedings due to neglect, and supervision orders were granted. While the supervision orders were in place, the mother became pregnant with C, and neither of C’s parents informed the children’s services despite its regular involvement with K and J.
After C’s birth, the local authority commenced care proceedings in respect of C. Initially, C and her mother spent two weeks in a foster placement before transferring to a residential assessment centre. The father of C and the mother’s older 2 children, K, and J, joined them.
The parenting assessment’s conclusion was that the parents could not provide long term care for all three children.
The parents did not agree and wanted all three remained in their care.
The judge found that the parents could not care for the children and granted care orders for all three children.
The judge endorsed the care plan for K and J to stay in foster care.
In relation to C, the local authority’s care plan for C, then an 11-month-old child, was adoption, and applied for a placement order, which was required to progress the plan for adoption. The Children’s Guardian supported this care plan.
Social worker’s evidence
The judge was critical of the social worker’s evidence, in that it failed to pay attention to a care plan of a long-term foster for C.
The social worker’s final evidence identified two realistic options for C: adoption and return home. The social worker set out the pros and cons of each option. In court, the social worker and the Children’s Guardian were questioned about their views on fostering, and their recommendations remained the same.
The judge’s decision was based on the view that the professional assessment was flawed. The judge refused to grant a placement order for C, on the basis that it had not been established that “nothing else would do.”
Appeal
The local authority appealed against the judge’s decision.
The Court of Appeal held in relation to the first instance decision:
- The judge had fallen into the error of using “nothing else would do” as a substitute for a proper welfare evaluation,
- The judge was wrong to find a gap in the evidence and a flaw in the evidence and professional analysis.
- The judge needed to make an all-round assessment of C’s welfare,
- The judge appeared to have considered that the predominant welfare factor was the benefit to C of her parents and half-siblings being a regular presence in her life.
- Instead of making a rounded welfare assessment, the judge elevated fostering into something that, in his view, ‘would do’ and, therefore, ruled out adoption. (see [43] of the judgment).
- The judge gave little or no weight to matters that were important and the judge was influenced by matters that were not.
- Fostering is just not right for C (paragraph 18), who was 11 months old, it would not provide the legal security for C, whereas adoption would make C a permanent part of an adoptive family. C had only spent 5 months with her mother and siblings. There was no guarantee that a foster placement for all three children together could be found.
- The interference with the Convention rights of the parents and K and J was necessary and proportionate because adoption was the only way of meeting C’s needs.
The court of appeal took the view that:
- The advantages of adoption for C were overwhelming (paragraph 18).
- Adoption is about as radical an interference in the right to respect for private and family life (paragraph 23). The interference with the European Convention of Human Rights of the parents and of K and J was necessary and proportionate because adoption was the only way of meeting C’s needs.
The appeal was allowed, and a placement order was granted on the basis that the child’s family relationships were not of such importance that they outweighed C’s prominent need to have a “lifelong family,” which could only be achieved through adoption. (paragraphs [55], [57] of the judgment).
Learning from this case
This case illustrates that the law remains the same as set out in Re B.
The decision highlights the need to view a care plan of adoption as a positive plan and not to be perceived as an adverse plan, and can be a realistic care plan where birth parents are unable to to meet the needs of the child.
It is important to remember that care plans for adoption are “very extreme” and only approved where “necessary” for the protection of the children’s interests, which means “when nothing else will do”,… “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33 (paragraph 21).
The case highlights that the court will only approve a care plan for adoption as the appellant court did in this case, if it is of ‘last resort’ and only permissible if ‘nothing else will do’. The professional evidence was not flawed.
The Court of Appeal accepted at the heart of the matter that C needs a lifelong family where she can feel that she belongs and agreed with the professional assessment of the social worker and the Children’s Guardian that this can only happen through adoption (paragraph 52).
The local authority is required to outline realistic options in the child’s care plan; the preferred plan must be supported by robust evidence and clear analysis to show why this is the only realistic care plan.
The evidence should include an analysis of the child’s needs, consideration of the welfare checklist and how this supports the child’s care plan. If the care plan is for adoption, then the social worker’s evidence needs to demonstrate that all realistic options have been considered and that adoption is the only plan that can meet the child’s needs.
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