The court of appeal upheld a challenge brought by prospective adopters against a family court decision to dismiss their application to adopt a girl, referred to as A, and instead make a special guardianship order (SGO) with the girl’s paternal grandparents.

Appeal judges found the family court judge’s decision should be set aside and the case reheard because he had failed to identify “significant errors” in evidence from two social workers, one an independent social worker (ISW) and one the children’s guardian.

Both “seasoned professionals” were found to have misunderstood the Re B ruling, which said an adoption order which severs ties with a child’s birth family should only be granted if overriding requirements for the child’s welfare make it a necessity, or, “in short, where nothing else will do”.

‘Fell into the trap’

As a result both “fell into the trap” of recommending the SGO because it was a viable family placement, without carrying out a proper analysis of the potential impact on A’s welfare. The family court judge accepted their opinion and his own welfare analysis was “fatally flawed”, the appeal judges found.

The girl, now two-years-old, was taken into care when aged five months. She lived with the prospective adopters, referred to as Mr and Mrs X, for the rest of the first year of her life with a view to an adoption. But A’s grandparents, who had previously been unaware of the girl’s existence, later came forward as potential carers and opposed the adoption order.

The family court was asked to consider competing applications for the adoption order and SGO.

In the appeal ruling, Lord Justice McFarlane explained why the social workers’ interpretation of Re B had been flawed when recommending the SGO.

“The phrase [‘nothing else will do’] is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare,” he said.

Guidance for court work on Community Care Inform Community Care Informsubscribers can read our guide to Re B-S compliant evidence or use a Learn on your Lunch resource on this topic.
You can also find summaries of the Re B and Re B-S judgments with what they mean for practice.

“Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase ‘nothing else will do’ can properly be deployed.”

He added: “Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option ‘a runner’ but should not automatically make it ‘a winner’ in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner’.”

Breaking attachments

Neither social worker gave proper consideration to the consequences of breaking A’s attachment to the prospective adopters if she was moved to live with the grandparents, the appeal judges found.

The guardian’s evidence also made repeated references to a child’s “right” to be brought up by his or her natural family, but Lord Justice McFarlane said this was an error as “no such ‘right’ or presumption exists”.

Backing the decision that the case should be reheard, Lord Justice Jackson expressed a hope that the next judge considering the proceedings would not face the same “all or nothing” decision on A’s future as the original care proceedings.

“The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her,” he said.

“Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.”

Other issues identified in the social work evidenceJustice McFarlane said he did not wish to cause the children’s guardian “undue professional or personal embarrassment” but that it was necessary to spell out the ways her report was “wholly inadequate”.  The ISW’s evidence was of a ‘higher quality’, professional piece but still flawed and skewed. In addition to the core error of misapplying Re B, he noted:

1. Lack of analysis – The evidence-based analysis section of the guardian’s report gave a history of the parents’ involvement with services, how the grandparents came to care for A’s younger sibling and their views about caring for A. The judge said this could in no way be seen as analysis “even less an ‘evidence-based analysis’, of the issue which was whether A, who was well settled and thriving in the care of Mr and Mrs X, should now be removed from that home and placed with her paternal grandparents within the paternal family, none of whose members she had ever encountered before.”Sections on impact of the current proceedings on the child and professional judgement were also described as “bland factual recital” of the history of the case and did not provide what the titles indicated.This was not compliant with the need for a balanced analysis of all realistic options as set out in Re B-S.
2. Failure to refer to the welfare checklists: Neither the guardian nor the ISW addressed the checklists set out in the Children Act 1989 and Adoption and Children Act 2002 when considering whether a move to A’s grandparents would be in A’s long term best interests.
3. Failure to provide A’s voice: Justice McFarlane noted that the guardian had not met A or Mr and Mrs X before filing her written report and that the ISW had been initially instructed not to meet the child, although later she had observed her at the prospective adopters’ home. “A’s personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment… the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.”

Source: Community Care