England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Preston County Court
Her Honour Judge Singleton QC
DI13C00154

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/11/2014

Lord Justice Ryder:

1. On 14 March 2013 Her Honour Judge Singleton QC dispensed with the consent of the mother of a four year old girl to her being placed for adoption and made a placement order in respect of the child on the application of the local authority, Blackburn with Darwen Borough Council. The consequence is that the child may now be placed for adoption by the local authority adoption agency and her mother will not be able to oppose the making of an adoption order unless a court gives her leave to do so. The child's mother has been given permission to appeal against that order and this court heard that appeal on 2 September 2014. The child's putative father, who does not have parental responsibility for her, has played no part in her life or in the proceedings in the county court and did not appear before this court. At the conclusion of the hearing the appeal was dismissed and these are my reasons for concurring in that decision.
2. The child, who I shall call 'M', is now five years old. She is placed with foster carers and has had four different placements since she was born. She last lived with her mother on 9 June 2011 when she was made the subject of an interim care order and placed with her first foster carers. On or about 29 May 2012 a special guardianship order was made on the basis that M went to live with her maternal grandmother who already had the care of two of her cousins. She was removed from that placement and placed with her present foster carers on 4 June 2013.
3. It is agreed between the parties that M's mother is not in a position to care for her. It is also agreed that M's mother will not be capable of caring for her in the foreseeable future. M was removed from her care in circumstances of neglect, inappropriate parenting, drug use and relationships with men who presented a risk to the child. It was agreed that the jurisdictional threshold for the making of public law orders under section 31 of the Children Act 1989 was satisfied. The mother's present partner, with whom she has cohabited for several years, has subjected her to domestic violence and other emotional / psychological abuse. He is a man who has been refused contact with his own children and who is said to lack insight into the impact of his behaviour on others. In the context of the negative assessment of her, M's mother did not put herself forward as a carer for M in the court below. She realistically confirmed her position to this court: she does not say that she will be able to change her parenting within a timetable that is consistent with the child's welfare. She accepts that M must be cared for outside her birth family until adulthood.
4. M was removed from her maternal grandmother's care because the grandmother placed her at risk of significant harm. M's grandmother had permitted unauthorised contact between M and her mother and had allowed the father of M's cousins who were also in her care to have extensive contact with the children in her home. That man is a 'schedule one' offender who was imprisoned in 2009 for sexual offences against children. After the first day of the final hearing, the grandmother did not seek to have M returned to her care and thereafter acquiesced in the mother's position with the consequence that there is no member of the birth family who is available or able to care for M.
5. The key issue in the proceedings in the county court was whether adoption was required to safeguard M's welfare. The judge decided that it was. The only alternative would have been a placement with long term foster parents which would have retained the child's status as a member of her birth family and would have permitted some contact between M and her mother. The judge had the advantage of detailed evidence from a social worker and an analysis by the guardian that agreed in the conclusion that adoption was overwhelmingly the best option for M. They agreed that it was the only way forward that would meet the child's need for stability. The benefit of maintaining contact as against the detriment of severing family ties was part of the court's evaluation. The judge conducted both a comparative welfare analysis of the two options that were available, looking at the benefits and detriments of each, and a proportionality evaluation in coming to her decision. Her methodology is not criticised.
6. The sole issue on this appeal is whether a court can make a placement order when the local authority's care plan describes what has come to be known as a 'dual track' or 'twin track' approach. I shall refer to this as 'dual planning' and a 'dual search'. In this case the care plan that was considered by the judge stated as follows:

"It is expected that it will take 6-12 months to identify an appropriate placement for [M]. The local authority plans to search for an adoptive placement for 6 months and then twin track a plan of (sic) adoption and long term foster care after 6 months

[…]

[the local authority] is confident that an adoptive placement will be identified for [M]."

7. The context for that plan was evidence from the local authority that there was a significant prospect that an adoptive placement would be found and that there were 27 potential families identified as being available to be considered. The reason for the plan was the local authority's evidence about the impact of delay on M should the right adoptive placement not be found in six months.
8. The judge was acutely aware of the issue that has been brought to this court. She invited submissions about it and came to the clear conclusion that there was no conflict between a decision by the local authority 'agency decision maker' that an adoptive placement was required and a plan which described a time limited search for such a placement after which a concurrent search for adoptive and long term fostering placements would take place i.e. a dual search. The appellant's primary case is that adoption as the best placement option on the merits should have failed the judge's proportionality evaluation because there was available an alternative that the local authority proposed as being appropriate within six months of the order complained of. This court is asked to decide whether the judge was right in law to decide that nothing else than adoption would do in the circumstance where the local authority's own plan described something else in as short a period as six months.

The Submissions

9. Mr Rowley QC, in an attractive argument on behalf of the appellant, concentrated on the formulation of legal policy that is to be found in Re B (A Child) [2013] UKSC 33 and Re B-S (Children) [2013] EWCA Civ 1146. He submitted that as a matter of law a dual search does not reflect a circumstance where nothing else will do because long term fostering will do. He also submitted that the effect of the decision of the Supreme Court in Re B is that there is a presumption against non-consensual adoption which can only be displaced where nothing else will do. He was realistic and open in acknowledging that the effect of his submissions would be that courts may not be able to make placement orders in some cases where children are more difficult to place, at least not until an adoptive match has been found for the child concerned.
10. Mr Rowley reminded the court of the strength of the language used in the Supreme Court, which for convenience can be taken from the summary of Sir James Munby P sitting in this court in Re B-S where at [22] he said:

"the language used in Re B (A Child) [2013] UKSC 33 is striking. Different words and phrases are used, but the message is clear. 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' and where 'no other course [is] possible in [the child's] interests', they are 'the most extreme option', a 'last resort – when all else fails', to be made 'only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do'."

11. Mr Rowley acknowledged that there may be a contingency in a care plan to take effect if "unforeseen events frustrate the main goal" and rationalised that concession as the distinction between "recognising the possibility of failure" and "of having decided that both long term fostering and adoption will do". As I shall explain, it is in that concession that the factual fallacy is contained which is fatal to the appeal in this case. In order to succeed Mr Rowley would have to have demonstrated on the facts that what was set out in the care plan in this case was not a legitimate contingency but rather a conclusion that something else would do.
12. Mr Rowley did not pursue with any vigour that element of the appeal that is directly or impliedly critical of the judge's reasoning on the merits because there is no material with which to do so. The local authority's social work evidence and the opinion of their agency decision maker was clear, the analysis of the children's guardian was to the same effect and the judge conducted her welfare analysis with care and made a choice that adoption was in the best interests of M after a process of deductive reasoning. By way of an example of that process the judge concluded that "the option of adoption for this child is well ahead, it is not a photo finish". The deciding factor in the case was M's "driving need for security, permanency and stability" which she reasoned in the following way:

[M had been subject to] "inconsistency, instability, separation and loss and frightening adult behaviour, together with pressure to withhold truth. One more move for this child is inevitable, but it seems to me imperative that there should only be one more move. She is only 4 ½ years of age. Her driving need is for security, permanence and stability."

13. Mr Rowley's alternative submission is that it would be a distortion of language to measure an option that is said to be a last resort where nothing else will do in as short a period of time as six months. It was for this reason that he argued that this case is analogous to a case in which the care plan and/or evidence is that both options will be pursued simultaneously because either would meet the welfare requirements of the child. That is not the factual matrix of this case. I am not prepared to accept that what is otherwise an acceptable contingency should be treated as if it was a decision to include long term fostering as being in the best interests of a child when that was not the judge's evaluation or decision.
14. Judge Singleton was bound by the decision of this court in Re P (Children) (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 at [137] in which the idea of dual planning received guarded support in the following terms: "there can be no objection in principle to dual planning in appropriate cases". Mr Rowley submitted that that element of the decision in Re P cannot survive Re B and that the principle of dual planning needs to be reconsidered. Mr Rowley did not accept that the issue of principle that he identifies is resolved by the decision of this court in Re F (A Child) (Appeal from Placement Order) [2013] EWCA Civ 1277 because, he submitted, in that case counsel for the local authority conceded that dual planning was permissible. I will consider Re F in due course.
15. Finally, Mr Rowley suggested that the approach of this court should reflect that of this court in Re A (Placement Order: Imposition of Conditions) [2013] EWCA Civ 1611. In that case a court wrongly identified conditions to be satisfied for the selection of an adoptive placement which had to be complied with before the placement order could be put into effect. Not only was that beyond the jurisdiction of the court but the placement decision complained of was conditional such that it could not be characterised as a decision in respect of which 'nothing else would do'. The consequence was that the placement order was set aside and the local authority had to continue its dual planning approach by a search under the auspices of a care order but without the benefit of a placement order – at least until a match had been found. Although the solution to the problem that the local authority faced in that case may well be applicable to other difficult cases, the decision is limited in its application given that in that case the judge's decision about adoption was constrained by the imposition of purported conditions or criteria whereas no limitation is placed upon the merits of adoption in this case.
16. In careful written submissions on behalf of the local authority and on behalf of the child, Ms Irving QC and Ms Heaton QC submitted that the rationale for dual planning is a recognition that in some cases where adoption is required on welfare grounds it may not be possible to achieve because of the limited pool of adopters. Matches for older children or children with particular characteristics may be more difficult to find than they are for babies. The court cannot (ever) be certain that a match will be found and in some proposed adoptions there must come a point where the effect of delay on the child is such that an alternative has to be considered. Six months may seem to be a short period of time in the abstract, but in the life of a child it can be a significant proportion of a child's life to date and it may encompass a period in which the child is increasingly attached to those who provide day to day care, who may not be people who can provide permanent parenting.
17. They reminded the court of the basis upon which the practice of undertaking concurrent searches for adoptive and long term foster placements was approved by this court in Re P. The suggested alternative of sequential searches (i.e. the abandonment of adoption before a search for a foster placement can be undertaken) was criticised on the basis that it would tend to lead to substantial delay to the detriment of the child concerned (see Re P at [136]).
18. Both Ms Heaton and Miss Irving placed emphasis on what this court and the Supreme Court actually said in the most recent authorities, rather than interpretations which they said place an unnecessary gloss on the statutory tests in the 2002 Act. They highlighted the long accepted policy of this court that a placement order can be made despite the fact that the court envisages difficulty in securing an adoptive placement. They relied on the dicta of Wilson LJ (as he then was) in Re S-H v Kingston Upon Hull City Council [2008] EWCA Civ 493 at [28]:

"the court has to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement or even of failure to find one at all"

and of Wall LJ (as he then was) in Re P (supra) at [137]:

"In our judgment a local authority can be satisfied that the child ought to be placed for adoption within the meaning of section 22(1)(d) of the 2002 Act even though it recognises that a search for adoptive parents may be unsuccessful and that, if it is, the alternative plan will have to be for long term fostering".

19. They submitted that in cases that involve children who have particular characteristics which might tend to make it more difficult to find an adoptive placement, no application could be made for a placement order until a placement has been found or a match made. The force of that submission was acknowledged by Mr Rowley who went further when he submitted that "we recognise that it is still the case that some prospective adopters will only come forward if a placement order is in place and that the pool of possible adopters my thereby be restricted to some degree".
20. I ought to record that an application was made by the local authority which was granted by this court to adduce additional evidence relating to the stage that planning and placement had reached since the decision appealed. In the event, the court did not need to rely on that evidence to make a decision but it is right to acknowledge that the local authority had filed a respondent's notice supported by evidence to the effect that a suitable adoptive placement had been found.

Discussion

21. It is helpful before discussing the issue raised in this appeal to examine the basis for the process undertaken by the judge. I need not repeat this court's detailed description of the duties and responsibilities of the court and of the local authority that was explained in Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431. This case begins where that left off. The detail concerning the local authority's responsibility for and the content of the care plan is to be found at [53] to [63], inclusive of Re W. In England the content of the section 31A plan is prescribed by the Care Planning, Placement and Case Review (England) Regulations 2010. That content does not include a timetable for any placement for adoption that it proposes.
22. As I remarked at [61] of Re W there is no longer a requirement in the Regulations to set out a contingency plan although many local authorities do so as a matter of good practice. The concept of a contingency plan used to be described in Government guidance (and in particular in guidance issued by the Secretary of State under section 7 of the Local Authority Social Services Act 1970 as LAC (99) 29, which was impliedly withdrawn when the new regulatory scheme came into being. It remains good practice to have such a plan because nothing can ever be certain. The existence of a contingency does not negate the force of a primary decision. That is to misunderstand the concepts of planning and forecasting.
23. A care plan does not have to contain information that is not prescribed. The duty imposed on the local authority by section 31A(3) CA 1989 is to give prescribed information in a prescribed manner. If a court finds that prescribed information is missing it can and should require it to be provided but if a court identifies an issue that needs to be decided but which falls outside the prescribed information, it should direct that evidence be filed on the issue (see Re W above). It needs to be understood that there is a distinction to be drawn between a court requiring a defective or inadequate care plan to be re-drawn or an alternative care plan to be provided and a court requiring evidence about an issue that will need to be decided in order to come to its ultimate determination.
24. It is accordingly relevant to observe that the words complained of in the care plan in this case need not have been there. Neither the timetable for the adoptive placement nor any contingency in the event of the plan failing to be implemented is a requirement of the regulatory scheme (see in particular regulations 9 and 11 and schedule 2 of the Regulations). Although by paragraph 3(3)(c) of schedule 2 of the Regulations, the expected duration of a foster care placement has to be provided in a plan, that is only if the child is not in the care of the responsible (local) authority, a circumstance that is not relevant to this discussion. Furthermore, the concept of a limit on the time taken to undertake an adoption search is personal to the welfare of the child concerned i.e. something based on the individual welfare needs of the child derived from the facts of the case rather than a general requirement. It is not a requirement placed upon an adoption agency by the Adoption Agencies Regulations 2005, as amended, which, like the 2010 Regulations, is silent about timescales. The adoption placement plan described in schedule 5 to the 2005 regulations which prescribes a date for placement is in the context of a child matched with identifiable prospective adopters which again is a circumstance not relevant to the facts of this case.
25. The statutory scheme in the Adoption and Children Act 2002 has been well rehearsed in the recent decisions of this court. I need only recollect that section 22(2) of the Act requires a local authority to apply to the court for a placement order where the child is subject to a care order or an application has been made for a care order and the local authority "are satisfied that the child ought to be placed for adoption" i.e. when the agency decision maker has made a decision that the child ought to be placed for adoption. At that point the court takes over. In the absence of the consent of those with parental responsibility the court has to make a decision under section 21 of the Act whether to dispense with a parent or guardian's consent and the test for dispensation is set out in section 52(1) of the Act which provides that:

"The court 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 it is satisfied that –

[…]

(b) the welfare of the child requires the consent to be dispensed with."

26. A placement order is a decision relating to the adoption of a child. Accordingly, section 1 of the 2002 Act applies. Section 1(2) provides that the paramount consideration of the court must be the child's welfare throughout her life. The factors to which the court must have regard, among others, are set out in a welfare checklist at section 1(4). Delay is relevant to that decision because section 1(3) provides that in general any delay in coming to the decision is likely to prejudice the child's welfare. Once a decision is made, however, delay is a matter for the local authority adoption agency not the court. That is because the limit of the court's jurisdiction over local authorities and their planning and review functions is clearly circumscribed by Parliament. It has been trite law since the decision of the House of Lords in A v Liverpool City Council & Anor [1982] AC 363 that the courts will not interfere in the operative decisions of local authorities save in the proper exercise of its supervisory or reserved jurisdictions, for example in relation to contact.
27. In summary, therefore, it is no part of a court's function to fix a timetable within which a local authority is to undertake the functions that are exclusively within its responsibility and operative discretion once a full care order and/or a placement order has been made. Such a direction would fall outside the jurisdiction of the court. There is no requirement in the regulations which prescribe the content of a Care Plan that a timetable for a placement search to be contained on the face of that plan.
28. There is an inevitable tension between a decision that adoption is required (in particular given the finality of the severance of the status of the birth family that such a decision involves) and the impact of delay on a particular child who is waiting for a placement. Once a court has decided that adoption is required, that tension is a matter for the local authority to consider during its review processes. Ultimately, if an adoptive placement is not found the local authority should return to court to revoke the placement order.
29. In Re F (A Child) [2013] EWCA Civ 1277 this court considered the circumstance in which a child who required intensive therapy and was not ready for adoption at the date a placement order was made (and would not be ready for adoption until the therapy was provided) could be the subject of a placement order i.e. whether it was too soon to be able to say that it was in the best interests of the child to make a decision. At [24] Black LJ reminded practitioners of the decision of Hughes LJ, as he then was, in Re T (Placement Order) [2008] EWCA Civ 248 at [17] namely that:

"mere uncertainty as to whether an adoption will actually follow is not a reason for not making a placement order" and that

"a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not."

30. The decision in Re F is, in my judgment, a very helpful analysis. The question in that case was whether a decision could be made that adoption was required or whether the decision could not be made until the happening of an event or process which would itself provide the key information upon which the decision depended. The answer to the question was that if the uncertainty is about whether or when suitable adopters can be found that it is not uncertainty that goes to whether adoption is required but to the process of finding a placement. On the facts of this case unlike those in Re F or in Re A (see above at [16]) the decision on the merits about adoption is not conditional on a process or event, quite the reverse. The decision was made on sound grounds and will only come into question if it cannot be implemented.

Formulation

31. Turning then to the issue in this appeal. I do not accept that Re B and Re B-S re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts. The test remains untouched but the court's approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision. That can be seen in graphic form in the comments of the President in Re B-S at [30]

"we have real concerns about the recurrent inadequacy of the analysis of reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new, but it is time to call a halt."

32. Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption. What the decisions do is to explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same. A court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the 'welfare checklist'). That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child's welfare throughout her life: that is the court's welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long term placement options. That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court's welfare analysis which leads to its value judgment. In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child. That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence.
33. That is what 'nothing else will do' means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child. The words of Lord Nicholls in In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [20012] 1 WLR 258 cited with approval in the Supreme Court in Re B remain apposite:

"[16] … There is no objectively certain answer on which two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child."

34. This court has on two recent occasions highlighted the way in which the proportionality evaluation is being misconstrued by practitioners. In each case practitioners were reminded to use the concept that was described by the Supreme Court in Re B. In M-H (A Child) [2014] EWCA Civ 1396 Macur LJ at [8] said:

"…I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of "nothing else will do". That is, the orders are to be made "only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests." (See In Re B, paragraph 215)…."

In Re M (A Child) (Long Term Foster Care) [2014] EWCA Civ 1406 Black LJ said:

"What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at [77] of Re B, speaking of a care order which in that case would be very likely to result in the child being adopted:

"It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be the last resort, because the interests of the child would self- evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. " (my emphasis)

I emphasise the last phrase of that passage ("in her interests") because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child's interests."

With respect, I agree.

35. It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit. The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available. The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it.
36. My answers to the questions posed by Mr Rowley are as follows:

a) The judge's methodology was right. She conducted a fact finding exercise, a welfare analysis of each realistic option, a comparative welfare evaluation and a proportionality evaluation.

b) The statutory tests are not re-drawn. 'Nothing else will do' is the conclusion of a proportionality evaluation after a process of deductive reasoning not a new presumption and not a standard of proof.

c) It is not necessary to have a contingency in a care plan although it is desirable. A timetable within which a local authority have to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.

d) Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.

e) There is no objection in principle to dual planning in an appropriate case. This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy. It was not a decision that one of two options would do.

37. For these reasons I dismissed the appeal.

Lord Justice Underhill:

38. I agree.

Lord Justice Beatson:

39. I also agreed that the appeal should be dismissed. In the circumstances of this case the decisions in Re B (A Child) [2013] UKSC 33 and Re B-S (Children) [2013] EWCA Civ 1146 do not preclude dual planning. Although the local authority and the judge considered adoption to be the option required (in the "nothing else will do" sense) to safeguard the welfare of the child, the difficulties in finding adoptive parents justified a contingency plan in case adoption, the option required on welfare grounds, could not be achieved.