The Judgement in Re B-S was handed down on 17th September 2013, the case having been heard on 22nd July 2013 by Lord Dyson Master of the Rolls, Sir James Mumby President of the Family Division and Lady Justice Black.
The appeal arose from the refusal of a mother’s application under Section 47 (5) of the Adoption and Children Act 2002 for leave to oppose the making of Adoption Orders in relation to her two children. The case is now at the forefront of the Court’s mind when considering final orders under care proceedings.
The emphasis is that placement for adoption without parental consent is a draconian step requiring a high standard of evidence. There is a need for the Local Authority (and children’s Guardians) to examine all available options and to provide clear evidence and analysis of the pros and cons of all options to the Court. In addition, the Court needs to give a carefully reasoned Judgement as to why adoption is the only option for a particular child.
In considering the case the Court drew three key points:
• That although the child’s interests are paramount, those interests included being brought up within the child’s natural family;
• That the statutes impose a requirement that the Court “must” consider all available options when coming to a decision; and
• That the Court’s assessment of the parents’ capacity to care for the child should include consideration of the support that the Local Authority could offer them to care for the child.
The Court reinforced the approach to be taken by Judges in indicating that there must be proper evidence setting out the reasons for and against adoption.
The case also reiterates that there must be an adequately reasoned Judgement with a balancing exercise and an analysis discounting all of the available options to conclude that adoption is the only viable option.
The Judge must take a global view, evaluating the negatives and positives of each option. The Court went on to further indicate that if the evidence is not available, the Court was not in a position to deal with the issues and an adjournment must be directed, even if that adjournment took the case outside the 26 weeks time frame recommended for care cases.
It is clear in our experience that the Courts are now demanding the analysis of the type referred to in the case of Re B-S before they will consider concluding a case where the care plan is one of adoption. A rigorous analysis of the options available is expected from both the Local Authority and the Guardian.