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Re B-S (Children) re-examined

baby feetThere is no short cut to determining how or if adoption orders can be challenged – despite important judgments and the guidelines and “myth-busters” which have grown up around them, according to Appeal Court Judges in a recent case.

In Re R (A child) [2014] EWCA Civ 1625 the judges discussed at length a case from the previous year, which was widely believed at the time to have made it significantly more difficult for Local Authorities to obtain adoption orders. The case, Re B-S (Children) [2013] EWCA Civ 1146, was thought to have made it essential for local authorities to convince courts that they had ruled out absolutely all other options and that foster care or guardianship should be pursued in preference to adoption.

Adoption rates plummeted as a result of the case. There was a 47 per cent drop in adoption orders in the nine months after the judgment.

The National Adoption Leadership Board responded by publishing a “myth buster” about the re B-S case – which asserted that the legal tests for adoption orders had not changed at all and that there was nothing in the Re B-S judgment that meant local authorities had to completely exhaust all other options before applying for one.

In Re R a mother, who had alcohol problems and suffered domestic violence from her current partner, was appealing against an adoption order obtained by an East London Authority for her two year old daughter. The basis of her appeal was that the judge granting the order had failed to take into account whether or not the local authority had properly conducted a “welfare analysis” under the requirements of the Re B-S case.

Lord Justice Macfarlane said that this formulaic approach was not necessary. The judge in the lower court had satisfied himself with the facts that the dangers the child faced whilst at home with her mother were “deeply entrenched.” The judge was entitled to conclude the only way the child could be safe was if she was given a 24 hour carer – which was unrealistic.

Lord Justice Floyd agreed saying that judgments on adoption orders were momentous decisions but that the law had “not changed” following re B-S.

Sir James Munby, president of the family division said there was “widespread uncertainty, misunderstanding and confusion” following re B-S. He said the changes attributed to re B-S are “founded on myths and misconceptions which need to be run to ground and laid to rest.”

Adoption orders can be made where nothing else will do but that did not mean an endless process of evaluation of every single possible option – only the realistic ones, he said.

Judge Munby pointed out the “myth buster” was not endorsed by the judiciary.

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