Re W (A Child)[2016] EWCA Civ 793

This case concerns a successful appeal by prospective adopters against a decision to refuse an adoption order and grant an SGO to paternal grandparents and is of interest as the appeal raised the following issues:

The approach to be taken in determining a child’s long-term welfare once the child has become settled in a prospective adoptive home and, late in the day, a viable family placements is identified;
The application of the Supreme Court judgement in Re B [2013] UKSC 33 (“nothing else will do”) in that context;
Whether the individuals whose relationship with a child falls to be considered under s1(4)(f) of the ACA 2002; and
Whether it is necessary for a judge to expressly undertake an evaluation in the context of the HRA 1998 and which rights are engaged

Background

The child was a two year old girl who was placed with foster carers when she was one day old. Care and Placement Orders were made when she was five months old and she was placed with prospective adopters aged seven months, with whom she lived for 17 months and had developed a  firm and sound bound.

A’s parents had another child. Family enquiries were made and the PGPs were contacted who became aware of A for the first time. The second child was placed with the PGPs. The parents then had a third child who was placed with a paternal aunt.

Cross applications were then made with the prospective adopters, supported by the LA, applying for an adoption order and the PGPs, supported by the CG and an ISW, applying for an SGO.

At first instance the trial judge dismissed the adoption application and made an SGO in favour of the PGPs. The prospective adopters appealed and a stay was granted pending the appeal.

The appeal was successful and the following points were made:

a) Where a significant time had passed in an adoptive placement and a secure, stable and robust attachment achieved, the welfare balance to be struck when a natural family member comes forward at this late stage must reflect these changed circumstances. At the earlier time when a placement order is being considered, the weight to be afforded to the child’s place within the adoptive family does not exist. The balance at the placement stage naturally tilts to a family placement where a full family member can provide good long term care for a child.
b) Where the relationship that the child had established with new carers is at the core of the balancing exercise and the question is what harm the child may suffer if that relationship is broken, the court will require expert evidence of the strength of attachment and the emotional and psychological consequences of ending it.

c) McFarlane LJ, considered the CG’s report as “wholly inadequate and, in a number of serious aspects, downright wrong”. There was no reference or analysis of the level of attachment that A had with the prospective adopters and the consequences in the short and long term of breaking that attachment.

d) An ISW was instructed to carry out an SGO assessment of the PGPs but it did not include an assessment of the prospective adopters or an assessment of A and her attachment to them. Throughout the report it referred to the “right” of a child to be brought up in her family of origin and that she should be brought up in her family of origin “unless there was absolutely no other option”.

Although McFarlane J noted that the ISW report was a professional piece of work, he considered  the approach by the author was flawed and that the generalised evidence of the CG and the ISW, which did not include an assessment of A and the prospective adopters, fell short.

e) The phase “nothing else will do” was said to be meaningless and potentially dangerous if it applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare”.

It was only after a comprehensive welfare analysis of the pros and cons is taken that the overall proportionality of a plan for adoption falls to be evaluated.

f) The CG and the ISW were criticised for falling into serious error for failing to understand the need to evaluate A’s future welfare by weighing up all the factors and for their repeated references to the “right” for a child to be brought up by his/her natural family.

McF J made it clear that the assumption that there is a presumption to this effect needs to be firmly and clearly laid to rest. No such “right” or presumption exists.

Both the CG and the ISW gave prominence to this “right” and the judge at first instance had relied on their evidence without drawing attention to this erroneous approach.

g) Reference was made to s1(4)(f) ACA 2002 which requires the court to consider the relationship that a child has with relatives and ” any other person” that the court considers relevant.

McFarlane J considered it was “self-evident that prospective adopters with whom a child had been placed should automatically be considered as part of this exercise.

h) There had also been a lack of any analysis of the parties human rights under the ECHR. The point was made that the relationship between A and the prospective adopters was sufficient to establish Art 8 family life rights unlike the PGPs, who has never met A.

The conclusion was that the first instance judge had fallen into error by relying on the evidence of the CG and the ISW without identifying the significant errors therein. The judge’s determination was set aside to be re-heard by different tribunal.