R (A Child)

In a contested adoption case, the court must evaluate the child’s welfare globally and holistically by comparing the advantages and disadvantages of each realistic option. The requirement, explained in In re B-S [2013] EWCA Civ 1146, concerns the substance of the analysis, not whether a judgment considers options sequentially.

Where adoption is proposed, the child’s lifelong welfare under the Adoption and Children Act 2002 is paramount. Adoption remains available where it is necessary to meet overriding welfare requirements: it is not displaced by a theoretical option that cannot safely meet the child’s needs. In re B-S did not alter the law or require investigation of every conceivable alternative, additional assessments, or tabular presentation.

ES was removed from her mother’s care after alcohol-fuelled domestic violence between the mother and father, and breaches of an agreement intended to protect the child. The mother accepted that the statutory threshold was met. Assessments did not support either parent caring for ES, although the mother sought rehabilitation under a supervision order.

Family Court, East London: on 30 June 2014, the judge made a care order and a placement order. He found that the mother’s entrenched alcohol misuse, vulnerability to abusive relationships, lack of candour, and ES’s insecure attachment made safe rehabilitation impossible without unrealistic constant supervision.

The mother appealed, alleging an impermissibly linear welfare analysis, undue reliance on dishonesty, an inadequate assessment and management of risk, and a breach of human rights. The central issue was whether the judge’s welfare evaluation complied with In re B-S [2013] EWCA Civ 1146.

1. Appeal dismissed unanimously. McFarlane LJ’s reasons were agreed by Floyd LJ and Munby P. The judge had made findings that were not challenged and was entitled to conclude that the mother could not make the necessary changes within ES’s timescale. His conclusion that the risk could be neutralised only by an unrealistic 24-hour professional presence was well supported by the evidence.

2. The judge had not committed the error identified in In re B-S [2013] EWCA Civ 1146. A judgment may necessarily consider matters in sequence. The question is whether its substance evaluates the positives and negatives of the realistic options. Here there were only two possible outcomes: rehabilitation to the mother or adoption. Read as a whole, the judgment evaluated both and did not compartmentalise the welfare exercise.

3. The mother’s dishonesty was directly material to risk management. It showed that she could not be relied on to give professionals a candid account of circumstances affecting ES’s safety. The judge had also taken account of positive features, including the mother’s commitment to contact and the quality of contact.

4. Munby P emphasised, with the agreement of the other members of the court, that In re B-S did not change the law. Where adoption is in the child’s best interests, local authorities may seek, and courts may make, adoption-related orders. In a contested case, adoption is permissible only where necessary in the child’s welfare interests and where nothing else will do.

5. The court must focus on options that are realistically possible. It need not investigate every conceivable alternative, require a tabular analysis, or order a second assessment merely because an initial assessment is negative. Where adoption is the plan, the welfare exercise must be undertaken through the relevant provisions of the Adoption and Children Act 2002, with the child’s welfare throughout life paramount.

• Court of Appeal (Civil Division): dismissed the mother’s appeal against the care order and placement order.
• Family Court, East London: on 30 June 2014, HHJ Sleeman made a care order and a placement order authorising the local authority to place ES for adoption.