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, 2 December 2013

Proportionality & adoption: Re B

If the threshold criteria are satisfied, the court has to evaluate, per McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 at [44], "which set of arrangements for the child's future care are to be endorsed by the court's order … by affording paramount consideration to the child's welfare (the welfare evaluation)”

The making of a care order with a view to her adoption represents an interference with the exercise by the children and the parents of their rights to respect for their family life. It is therefore lawful only if, within the meaning of article 8(2) of the Convention, it isnot only in accordance with the law but also "necessary" in a democratic society for the protection of the right of the children to grow up free from harm. In Johansen v Norway (1997) 23 EHRR 33 the European Commission of Human Rights observed, at para 83, that "the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportional to the legitimate aim pursued".

In a number of its judgments the European Court of Human Rights, "the ECtHR", has spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. In YC v United Kingdom (2012) 55 EHRR 33, it said:

134 The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained.

Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them.

A parent's consent to the making of an adoption order can be dispensed with only if the child's welfare so requires (section 52(1)(b) of the Adoption and Children Act 2002); there is therefore no point in making a care order with a view to adoption unless there are good grounds for considering that this statutory test will be satisfied.

It is clearly not enough that it would be better for the child to be adopted than to live with his natural family (In re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 7).

That adoption must be demonstrably required is heavily emphasised in the Supreme Court's judgments in In the matter of B (A Child) [2013] UKSC 33.

Lord Wilson at para 34:

The same thread therefore runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word "requires" in section 52(1)(b) "was plainly chosen as best conveying...the essence of the Strasbourg jurisprudence" (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125).

Lord Neuberger at para 104:

104. We were not addressed on [Article and cases referred to]. However, they all give added weight to the importance of emphasising the principle that adoption of a child against her parents’ wishes should only be contemplated as a last resort – when all else fails. Although the child’s interests in an adoption case are “paramount” (in the UK legislation and under article 21 of UNCRC), a court should never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.

Kerr para 130:

Whether or not article 8 has any part to play in the threshold decision, it certainly comes into full flower at the disposal stage. Lady Hale and Lord Wilson have both referred to emphatic statements by ECtHR in such cases as Johansen v Norway (1996) 23 EHRR 33, K and T v Finland (2001) 36 EHRR 18, R and H v United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236 and YC v United Kingdom (2012) 55 EHRR 33 concerning the stringent requirements of the proportionality doctrine where family ties must be broken in order to allow adoption to take place. I agree with Lady Hale's statement (in para 198 of her judgment) that the test for severing the relationship between parent and child is very strict and that the test will be found to be satisfied only in exceptional circumstances and "where nothing else will do". I also agree with what Lord Wilson has said in para 34 of his judgment, that "a high degree of justification" is required before an order can properly be made.

Lord Clarke at para 135:

A care order cannot be made unless it is necessary in the best interests of the child. Nothing less than necessity will do, either under our domestic law or under the European Convention on Human Rights. Only in a case of necessity will an adoption order removing a child from his or her parents be proportionate.

Lady Hale at para 198:

Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34,
"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.

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