Important Cases in Child Care Proceedings

Recent cases in the Court of Appeal and the Supreme Court have looked at the way the issue of non-consensual adoption should be considered by the Courts. The first of these important judgments was given in Re B. (Re B (A Child) [2013] UKSC 33) The Supreme Court outlined the proper way in which the Court should decide whether adoption is the best outcome for a child, emphasising that non-consensual adoption is a draconian order.

The judgment reminds Courts that the proportionality of adoption must be considered. A care order with a view to adoption may only be made if adoption is necessary for the child to be brought up free from harm. When deciding whether adoption is proportionate, Courts must consider:

1)      It is not enough that it would be better for the child to be adopted than not;

2)      The parents’ consent can be dispensed with for adoption but only if the child’s welfare requires this, and the court must be satisfied that there is no practical way of the authorities or others providing the necessary help and support to the parents to care for the child;

3)      The interests of the child must mean it is necessary to make an adoption order.

Lord Neuberger stated that ‘a court must never lose sight of the fact that [the child’s interests] include being brought up by her natural family, ideally her natural parents, or at least one of them’. Whilst nothing new was decided in the Re B decision, the judgment highlights the approach the Courts should take when dealing with Care Proceedings where adoption is proposed.

Re B-S (Re B-S (Children) [2013] EWCA Civ 1146) considered the circumstances in which it is appropriate for the Court to refuse leave for a parent to apply to revoke a placement order, where a child has been placed for adoption. S47(7) Adoption and Children Act 2002 states that the court cannot give leave… unless satisfied that there has been a change in circumstances since… the placement order was made.

The president of the Family Division, Munby provided guidance on the correct test for the Courts to decide this specific issue. Munby clarified that previous language used in relation to whether to grant leave should no longer be used. He stated that it need not be in ‘extremely rare circumstances only’ that leave will be granted. Munby emphasised that S47(7) was intended to provide parents with a real remedy where they have had a change in circumstances, to enable them to have another hearing to consider whether adoption is the best outcome for the child. Munby hoped this judgment would encourage Courts to interpret this provision the way it was intended.

Munby also provided guidance on the proper way for the Court to decide whether adoption is the best outcome for a child. He stated this decision requires the Court to look at proper evidence and give an analysis of all the options for a child, not just listing the disadvantages of other options and concluding that adoption is the only viable option. A consideration of the pros and cons of all options should be made and every option for a child should be looked at holistically with the welfare of the child borne in mind. It is only when the Court has carried out this thorough balancing exercise that it may make its decision.

These judgments are important for parents in child care proceedings as they clarify that Courts should not accept a care plan of adoption without a balanced consideration of all the options. If you require assistance with this type of proceedings our Care Department can help you.