W (A Child), Re

In a highly unusual private-law adoption case, the court must determine the child’s welfare throughout life by a comprehensive evaluation of the realistic options. The phrase “nothing else will do” is not a freestanding shortcut to adoption. It is a concise expression of the necessity and proportionality test.

A viable placement with the natural family is a realistic option, but it is neither a presumption nor an automatic winner. Where a child is securely and deeply attached to prospective adopters, the court must assess the harm of disrupting that attachment against the longer-term risks of adoption, including identity, life-story and contact issues. Adoption may be ordered without parental consent only where the child’s welfare requires it and adoption is necessary and proportionate.

W was born in November 2012 and had lived with prospective adopters, Mr and Mrs A, since January 2014. Her three older siblings lived with their father. Earlier care and placement orders were set aside on appeal because the original welfare analysis was inadequate. A subsequent decision in favour of reunification was also set aside because the hearing and expert evidence had been materially compromised.

On the rehearing, the local authority sought leave to withdraw its public-law applications. Mr and Mrs A sought an adoption order and the dispensing of the parents’ consent. The father sought W’s return to his care. The central issue was which of the two realistic options best served W’s welfare throughout her life, having regard to the risks of disrupting her established attachments and the risks associated with adoption, including her future life-story and identity.

1. Public-law proceedings. The local authority was given leave to withdraw its applications. Continuing them served no useful purpose and there was no realistic prospect of public-law orders against the father.
2. Threshold and statutory route. The application proceeded as a private-law adoption application under Adoption and Children Act 2002, section 47(2). Proof of threshold was not a precondition to making the adoption order. The historic threshold issue was also unsuitable for resolution several years later and was irrelevant to the live application.
3. Applicable legal framework. The paramount consideration was W’s welfare throughout her life under section 1(2) of the 2002 Act. The court applied the necessity and proportionality principles reflected in R and H v United Kingdom, (2011) 54 EHRR 28, YC v United Kingdom, (2012) 55 EHRR 33, In re B (A Child) (Care Proceedings: Threshold Criteria), [2013] UKSC 33, and Re W (A Child), [2016] EWCA Civ 793. Adoption is permissible only in exceptional circumstances where the child’s welfare requires it. “Nothing else will do” must follow, not replace, a full welfare evaluation.
4. Evaluation of the options. W regarded Mr and Mrs A as her parents and their son as her brother. Moving her would cause immediate and significant distress and trauma, with a real risk that she could not form a secure attachment to her father and that the placement might break down. The father was an excellent and committed parent, but the outcome would depend substantially on W’s own resilience and psychological functioning, which professional support could not guarantee.
5. The risks of adoption were real, particularly the difficulty of providing an honest life-story and managing future questions about her birth family and siblings. However, those risks would emerge gradually, when W’s placement was likely to be more secure, and were assessed as small in comparison with the risks of immediate removal.
6. Adoption and contact. W’s welfare required her to remain with Mr and Mrs A and required adoption. The parents’ consent was therefore dispensed with under section 52(1)(b). No contact order was made. It was for the adoptive parents to determine when and how indirect and direct contact should begin, but they were expected to commit themselves wholeheartedly to making appropriate contact work.

1. Court of Appeal: The original care and placement orders were set aside for inadequate welfare analysis in Re H (Children) (Application to Extend Time: Merits of Proposed Appeal), [2015] EWCA Civ 583.
2. High Court (Family Division): On rehearing, Russell J ordered reunification, but that decision was set aside because the hearing and expert evidence were materially compromised in Re H (A Child) (Appeal), [2015] EWCA Civ 1284.
3. Supreme Court: Permission to appeal from that decision was dismissed on 17 March 2016.
4. High Court (Family Division): Sir James Munby reheard the matter afresh and made an adoption order in favour of Mr and Mrs A.