Clarification from the President on the post Re B-S landscape

In a judgment handed down today in Re R (A Child) [2014] EWCA Civ 1625 the President of the Family Division, Sir James Munby, has addressed what he describes as 'widespread uncertainty, misunderstanding and confusion, which we urgently need to address' regarding adoption and that the decision in Re B-S (Children) (Adoption: Application of Threshold Criteria) [2013] EWCA Civ 1146, [2013] 3 FCR 481 is '...being used as an opportunity to criticise local authorities and social workers inappropriately' and that 'Re B-S did not change the law. Re B-S was primarily directed to practice.'

The President says (at para 44):

'I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.'

And also (at para 50):

'The fundamental principle, as explained in Re B, is, and remains, that, where there is opposition from the parent(s), the making of a care order with a plan for adoption, or of a placement order, is permissible only where, in the context of the child’s welfare, “nothing else will do”.' 

He adds (at para 55):

'Nothing that was said in Re B-S was intended to erode or otherwise place a gloss upon the statutory requirements of section 1 of the 1989 Act and section 1 of the 2002 Act. On the contrary, the exhortation for courts to undertake a balancing exercise which pits the pros and cons of each realistic option against the others was aimed precisely  at discharging the court’s statutory duty under section 1. In particular, before making a decision relating to a child’s welfare, a court is required to have regard to, amongst other matters, the factors set out in the relevant ‘welfare checklist’. The evaluation of options described in Re B-S must undertaken with those factors in full focus.'

Finally, the President comments in relation to a document published by the National Adoption Leadership Board on 11 November 2014 popularly referred to as the Re B-S myth-buster and says:

'This document appears to be directed primarily at social workers and, appropriately, not to the judges. It has been the subject of some discussion in family justice circles. I need to make clear that its content has not been endorsed by the judiciary.'

Geraldine Morris is a solicitor and Head of LexisPSL Family.

Twitter: @GeraldineMorris

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