In the case of Re R (A Child)  EWCA Civ 1625 the Court of Appeal has addressed the confusion and bad practice which seems to have arisen since the case of Re B-S (Children)(Adoption Order: Leave to Oppose)  EWCA Civ 1146.
Re R was an appeal where the first instance decision was criticised in the main because of a perceived failure to undertake the analysis required by Re B-S of the relative advantages and disadvantages of the different available options. In particular there was criticism that the judgement was in a linear form and not the tabular manner referred to in Re B-S.
The Court of appeal stressed the danger in putting undue focus on the structure rather than the content of the judgement – a judgement will necessarily be linear in form even if it considers the substance holistically. It was also held that;
- The court need not go through wholly unrealistic options – if only two options were realistic then only those should be considered.
- Where the only options were return to the parent(s) or adoption, the court should consider the argument with reference to the Adoption and Children Act 2002 welfare checklist and it was unnecessary to consider the Children Act as well.
- Re B-S should not be seen as changing the law or raising the burden for the Local Authority to prove that a plan for adoption is appropriate.
- Re B-S should not be seen as a justification for further expert assessment or ‘forensic pursuit’ of unrealistic options in an attempt to rule out all other options. The court should consider only those options which are ‘realistically possible’. ‘Nothing else will do’ does not mean ‘everything else has to be considered’.
- In appropriate cases a parent or even both parents may be ruled out at a preliminary hearing as not providing a realistic option. This process could be ‘if appropriate having heard oral evidence’ – raising the possibility that parents may be ruled out without such evidence, though this is likely to be rare. Judges should be ‘appropriately cautious’ in ruling out parents at a preliminary stage.
- The National Adoption Leadership Board’s document Impact of Court Judgments on Adoption: What the judgments do and do not say dies not carry the endorsement of the judiciary.
This judgment comes on the back of the recent judgment of Macur LJ in Re M-H (A Child)  EWCA Civ 1396 where it was made plain that the existence of a contingency plan or of another potential option which is credible does not mean that a plan for adoption will fail. The test is driven by the welfare of the child throughout its life, which is the paramount consideration, and where a plan for adoption is clearly necessary in furtherance of that welfare, a credible alternative may be ruled out.
These cases highlight that the Re B-S analysis is no more than a restatement of the fact that (a) To justify a plan for adoption it must be necessary, not simply the best option and (b) judges and professional witnesses must analyse the realistic options to consider whether such a plan passes that test.