About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Monday, 4 November 2013

The B-S hall of fame

What follows is a short summary of the main principles from Re B & the subsequent cases including B-S on the court's approach to performing the balancing exercise in evaluating care plans involving placement away from the family. I will add to the summary as any more cases are decided.

 

Re B [2013] UKSC 33

The interests of the child must render it necessary to make an adoption order, a high degree of justification is required before an order can properly be made (Wilson), adoption should only be contemplated as a last resort, when all else fails (Neuberger), test is very strict and will be found to be satisfied only in exceptional circumstances and 'where nothing else will do'(Kerr), only in a case of necessity will an adoption order removing a child from his or her parents be proportionate (Clarke), strict test, only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, where nothing else will do (Hale)

The test for an appeal: was the Judge wrong?

Re B-S [2013] EWCA Civ 1146

Appeal against decision to refuse leave to apply to oppose adoption application.

The LA must file proper evidence about all the alternative outcomes analysing the arguments for & against each option
May be helpful to use balance sheet approach setting out positives & negatives by reference to the welfare checklists

Two-stage test: has there been a change in circumstances? Should leave be given?

Bring into the balance per Re B the arguments for & against each outcome?

Placement is not determinative.

The test should not be set too high.

Re G [2013] EWCA Civ 965

Linear approach to be avoided. Evaluation must be global & holistic. Formulaic judicial window dressing insufficient. The Judge must deal with the detail and the specifics.

Re P [2013] EWCA Civ 963

Appeal against care & placement orders.
Judge failed to carry out proper balancing exercise. Should have made clear findings on the facts as a platform for assessment of the potential disadvantages of placement with the father. The nature of the feared harm & its likelihood must be clearly identified and weighed against the positives. Case remitted for rehearing.

Re W [2013] EWCA Civ 1177

Parents appealed against refusal of permission to oppose adoption orders. In reviewing decisions post B-S court must focus on substance not form. Adoption orders set aside because permission applications should have been granted. The adoption orders should not have been finalised until after the time for appealing the refusal of permission had elapsed.

Re C

Appeal against care & placement orders by grandparent applying for Special Guardianship.

I confess to a personal interest in this case.


Linear approach still deprecated but the judgment might still be allowed to stand? Judgment must consider the checklists in both Acts.


Re V [2013] EWCA Civ 913
Judge at first instance declining to approve adoption care plan - parents unable to care but court considering long-term fostering to be the right outcome. Appeal of local authority allowed. On the facts of the case the balance fell in favour of adoption.

Re D-R

County Court judgment - the alternative care plan - adoption or fostering if adoption not achievable - survives Re B - just

Re W v Neath Port Talbot [2013] EWCA Civ 1277

Judge considering mother a much higher risk than LA & wanting them to have a care order with placement at home. Court held that LA has to accept court's evaluation of the risk and provide any evidence which the court requires. If they disagree the LA should appeal or risk being the subject of JR or injunctions.

 

Re R [2013] EWCA Civ 1240

Appeal against placement orders. Plan had been approved provided 2 children were placed together. This plan could not be achieved through either adoption or foster care so LA planned to place separately. Mother appealed. LA conceding that case should be re-opened to reconsider what was currently in the best interests of the children.

 

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