M-H (A Child)

A placement order dispensing with parental consent may be made only in exceptional circumstances where the child’s overriding welfare requirements demand adoption. The expression “nothing else will do” is not a literal rule that adoption becomes unavailable whenever another credible option exists.

The court must evaluate all realistic options holistically. It must ask whether a less interventionist option can meet the particular child’s welfare needs, rather than merely identify which option is probably best. The evaluation must address the whole picture, including the child’s characteristics, needs and experience of harm.

The judge must evaluate the evidence independently and articulate the reasoning adequately. A judgment need not discuss every item of evidence, but it must demonstrate an evaluation of the material evidence rather than merely adopt expert opinions.

The mother appealed against a placement order made by HHJ Jakens in Brighton County Court concerning her daughter, S. The mother accepted that neither parent could care for S then or in the foreseeable future. The dispute concerned whether S should be adopted or remain in long-term foster care, under which she was more likely to retain substantial parental contact.

The appeal raised two questions. First, whether the judge had applied the correct test when dispensing with parental consent and making the placement order. Secondly, whether she had adequately evaluated the expert evidence, balanced adoption against long-term fostering and explained her decision.

1. Appeal dismissed. The first-instance judge had applied the correct legal test, adequately evaluated the relevant evidence and reached a decision that could not be characterised as wrong. Patten and Laws LJJ agreed with Macur LJ.

2. The governing test arose from sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002, as interpreted in Re B-S (Children) [2013] EWCA Civ 1146 and In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33. Adoption is permissible only in exceptional circumstances and where the child’s overriding best interests require it. The words “nothing else will do” must not be isolated from that welfare qualification.

3. The existence of another credible option does not automatically prevent a placement order. Adoption plans ordinarily require contingency arrangements, often long-term fostering. A literal construction of “nothing else will do” would therefore cause applications to fail merely because a fallback option existed. The court must instead determine whether the particular child’s welfare demands adoption.

4. The required holistic exercise is not a direct comparison designed merely to identify the option that would probably be best. It tests whether a less interventionist option can meet the child’s welfare needs. Individual features of an alternative may offer advantages without determining the overall outcome. The court must assess the whole picture, including the child’s characteristics, needs and exposure to harm.

5. Although some language in the first-instance judgment referred to adoption as the “best” or “safest” option, substance prevailed over semantics. A best outcome and a last resort are not mutually exclusive where the child’s overriding needs leave only one viable option. Read as a whole, the judgment showed that HHJ Jakens had found both that adoption best met S’s needs and that nothing else would do.

6. A judge must not follow expert opinions blindly or merely state that an expert’s view is accepted. The decision-making process and reasons must be adequately articulated. The judge need not rehearse and comment upon every item of evidence, provided the judgment demonstrates an evaluation and assimilation of the material evidence.

7. The first-instance judgment sufficiently addressed the advantages and disadvantages of adoption and fostering, the expert’s qualifications and concessions, S’s attachment to her mother, her exposure to violence and instability, and her need for permanence. Although another judge might have decided a finely balanced case differently, an evaluation based on all relevant material and the correct principles was difficult to displace.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 1396, unanimously dismissed the mother’s appeal and upheld the placement order.
• Brighton County Court: HHJ Jakens made a placement order concerning S on 16 April 2014.