E (A Child), Re

In adoption cases, dispensing with parental consent under section 52 of the Adoption and Children Act 2002 requires a rigorous proportionality assessment. Adoption should be authorised only where nothing else will do and it is the only way to meet the child’s welfare in the round. The court must balance risks against positive parenting findings, attachment, protective arrangements and realistic alternatives. A judgment need not expressly cite every welfare checklist or Article 8, provided its reasoning demonstrates that the relevant factors were considered and is legally compatible. In a finely balanced case, express consideration of the adoption welfare checklist and statutory consent test is wise. The proportionality of state intervention also includes the local authority’s efforts to support separation and rehabilitation.

Care proceedings followed the serious brain injury suffered by S. In the fact-finding proceedings, Her Honour Judge Cushing found that Mr U had assaulted S and made no adverse threshold finding against the mother. At the final hearing, the judge nevertheless made a full care order, dispensed with the mother’s consent under section 52 of the Adoption and Children Act 2002, authorised placement for adoption and reduced contact.

The mother appealed with permission granted by Macur LJ. The issues included whether adoption was proportionate, whether the local authority had provided adequate assistance to enable separation from Mr U, and whether the judge’s failure expressly to identify the relevant statutory and Convention framework affected the decision.

Appeal allowed. The placement-for-adoption order was set aside. The care order was also set aside and replaced by an interim care order. The matter was returned to the Principal Registry for an alternative care plan and, if necessary, further determination by Judge Cushing. Short-term contact was left for further submissions.

1. Dispensing with parental consent required application of the test in section 52 of the Adoption and Children Act 2002: the child’s welfare must require consent to be dispensed with. Adoption involves permanent separation from the natural family and should be selected only where nothing else will do. The court must identify the point at which state intervention is justified by assessing proportionality in the round. This approach was supported by Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, Re B [2013] UKSC 33 and B-S [2013] EWCA Civ 1146.
2. There was no absolute requirement for a judge expressly to cite every welfare checklist, Article 8 or other legal source. The essential question was whether the reasoning demonstrated that the relevant factors had been considered and that the approach was legally compatible. However, in a finely balanced adoption case, express consideration of the adoption welfare checklist in section 1(4)(c) and (f), and of the section 52 test, was wise and helpful. The court declined to follow the higher requirement suggested in EH v X London Borough Council [2010] EWCA Civ 344.
3. The first-instance judge had focused excessively on the mother’s continuing emotional involvement with Mr U and the resulting risk of harm. That risk was important, but it had to be balanced against the mother’s positive parenting findings, S’s attachment to her, the absence of adverse threshold findings against her, existing protective arrangements and the availability of rehabilitation. The local authority’s failure to provide practical assistance to help the mother separate from Mr U was also relevant to the proportionality of state intervention.
4. The adoption outcome was therefore disproportionate and wrong in the sense identified in Re B. The judge had also misunderstood the expert evidence by treating six months’ therapy as a necessary precondition to rehabilitation. Absent a significant change of circumstances, adoption was not a proportionate future plan for S.

• Court of Appeal (Civil Division) — [2013] EWCA Civ 1614: appeal allowed; the placement-for-adoption order was set aside and the care order was replaced with an interim care order.
• High Court and family court proceedings — Judge Cushing made the underlying care, adoption-placement and parental-consent orders after finding that Mr U had injured S. No citation for the appealed decision is stated in the judgment.