By Carla Fraser
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Adoption in best interests of the child

In a previous article I set out the general provisions on the legal test for adoption.

As set out in The Legal Test for Adoption the test to be applied in respect of the decision to free any child for adoption is twofold.  First the court must be satisfied that adoption is in the best interests of the child and secondly it must decide that a reasonable parent would consent to such adoption.

In this article I will set out the law in relation the first test, namely, the court must be satisfied that adoption is in the best interests of the child.

His Honour Judge McFarland in a judgment handed down on 4th January 2019 (A Mother & A Health and Social Care Trust & A Father) set out the legal test for an adoption order to be made.

This was a case where PA Duffy & Co Solicitors acted.

Before reviewing some of the case law relating to adoption McFarland J noted that English case law after 2002 has to be interpreted taking into account the change of legislation.  Although the law in relation to care orders is virtually identical in the two jurisdictions, the law in relation to adoption was virtually identical up to 2002, Section 1(2) of the Adoption and Children Act 2002 now provides that: “the paramount consideration of the court must be the child’s welfare throughout his life”/  although this heralded an enhancement of the child’s welfare to a status of paramountcy in England as opposed to the most important consideration in Northern Ireland, I am of the view that the English case law still has some relevance to the issues of this case.

The jurisprudence in relation to the general approach to be taken un relation to adoption decisions and care order decisions involving care planning of permanence by way of adoption is now well established.  Kerr LCJ in AR -v- Homefirst Community Trust [2005] NICA 8 at [77] said that

“the removal of a child form its parents is recognised…as a draconian measure, to be undertaken only in the most compelling of circumstances”.

The Supreme Court in Re B (a child) [2013] UKSC 33 used similar language in setting out the test to be applied by any court considering care planning involving adoption.  Lord Kerr at [115] spoke of the need to consider the question of proportionality and stated that “a decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary?”  Lord Neuberger considered an order of this type as being “a last resort” (at [73]) and “when all else fails” (at [104]), and Baroness Hale said of the test – “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.” (at [198]).  Baroness Hale’s much quoted phrase “nothing else will do” has now entered the legal lexicon achieving iconic status, however McFarlan LJ inRe W (A child) [2016] EWCA Civ 793 at [68] observed that

“the phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare.  Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime”.

Black LJ in Re P (Care Proceedings: Balancing Exercise) [2013] EWCA Civ 963 stressed at [107] the need for a court to carry out a proper balancing exercise in order to determine the necessity of making an adoption order, an exercise she described as “a proportionality analysis”.

Although Lord Neuberger in Re:B (above) at [104] stated that “although the child’s interests in an adoption case are “paramount”…, a court must 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”  this did not create any presumption in favour of a natural family.  McFarlane LJ in Re:H (a child) [2015] EWCA 1284 and later in Re:W (a child) (above) was very firm in his rejection of such a concept.  In Re:W (a child) at [71] he stated

“the repeated reference to a ‘right’ for a child to be brought up by his or her natural family or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest.  No such ‘right’ or presumption exists.  The only right is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life in a manner which is proportionate and compatible with the need to respect any Article 8 rights which are engaged”.

To put the matter in the context of the decision of the Supreme Court in Re:B (a child) (above) he further stated at [73]

“it may be that some confusion leading to the idea of there being a natural family presumption has arisen from the use of the phrase “nothing else will do” but that phrase does not establish a presumption or right in favour of a natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs”.

In this particular case P.A Duffy & Co successfully defended the Trust application for an Adoption Order on behalf of the Father.

If you or anyone you know, have been affected by the issues raised in this article, then please do not hesitate to contact our legal team at P.A. Duffy & Co. Solicitors. We have a team of solicitors who specialise in Adoption law, who will provide expert insight into the adoption process in the UK and will tailor our services to suit your needs.

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